MORRIS SHEPPARD ARNOLD, Circuit Judge. Kathleen Kline, Anne Wedow, Erma Morgan, and Betty Taylor, each of whom was an employee of the Kansas City, Missouri, Fire Department, sued the department under Title VII of the Civil Rights Act of 1964, see 42 U.S.C. �� 2000e through.2000e-17, and the Missouri Human Rights Act (MHRA), see Mo. Rev. Stat.�� 213.010-213.139. (Although the named defendant is the Fire Department, we referto the city as the defendant in this opinion for purposes of simplicity.) All four womenclaimed that they were disparately treated based on their sex, that they were subjectedto a hostile work environment based either on their sex or their race, and that they wereretaliated against for filing charges against the city and for opposing Fire Departmentpractices. The trial court excluded much of the plaintiffs’ evidence in limine: No evidence was admitted of acts that occurred prior to 1989, of the experiences of other womenemployees of the Fire Department, or of alleged discrimination with respect to clothesand facilities. The trial court also granted partial summary judgment againstMs. Wedow and Ms. Morgan, dismissing their disparate treatment and hostile workenvironment claims. At trial, Ms. Kline prevailed on part of her disparate treatment claim and on her hostile work environment claim and her retaliation claim. The jury awarded herapproximately $47,000 in compensatory damages and $150,000 in punitive damageson her disparate treatment claim, $1 in nominal damages and $100,000 in punitivedamages on her hostile work environment claim, and $1 in nominal damages and$50,000 in punitive damages on her retaliation claim. Ms. Taylor prevailed on part ofher disparate treatment claim, and the jury awarded her approximately $96,000 incompensatory damages and $100,000 in punitive damages. The jury found for the cityon the remaining claims of Ms. Kline and Ms. Taylor, and on the retaliation claims ofMs. Wedow and Ms. Morgan. The trial court subsequently granted the city’s motionto vacate the punitive damages awarded to Ms. Kline and Ms. Taylor. The plaintiffs appeal the evidentiary exclusions noted above, the jury instructions given in light of those exclusions, the summary judgment rulings against Ms. Wedowand Ms. Morgan, and the order vacating the award of punitive damages. The city.cross-appeals, claiming that there was insufficient evidence to support the judgment infavor of Ms. Taylor. We affirm the trial court with respect to the plaintiffs’ appeal butreverse the judgment in favor of Ms. Taylor’s disparate treatment claim. We remandthe case for the entry of appropriate orders. I. Employment discrimination claims of the kind involved here are barred if a plaintiff fails to file a timely charge with the appropriate federal or state administrative agency. Evidence of discrimination is ordinarily admissible only with respect to acts within the statutory limitations period preceding the filing of the charges. The plaintiffs in this case, however, sought to admit evidence of events predating the limitations period, maintaining that they could do so because they were complaining of continuing violations. We have long recognized that a claim may be timely if it is based on an ongoing violation that began before the limitations period began but continued into it, see Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir. 1995) (en banc), and that evidence of events “occurring outside the limitations period may … be admissible … when the incidents are part of a continuing violation,” Kimzey v.Wal-Mart Stores, Inc., 107 F.3d 568, 572 (8th Cir. 1997). A violation is continuing ifit consists of ” ‘an ongoing pattern or practice of discrimination,’ ” rather than anamalgamation of discrete, isolated instances. Rorie v. United Parcel Service, Inc. 151F.3d 757, 761 (8th Cir. 1998), quoting Jenson v. Eveleth Taconite Co.
, 130 F.3d 1287
,1303 (8th Cir. 1997), cert. denied, 118 S. Ct. 2370 (1998) (emphasis omitted).We have held, moreover, that “[e]ven if a plaintiff is unable to show a continuingviolation, … instances of harassment occurring outside the [limitations] period may beadmissible to provide relevant background to later discriminatory acts.” Rorie, 151F.3d at 761. Damages, however, may be recovered only with respect to events thatoccurred within the limitations period. Ashley, 66 F.3d at 168 (“[r]elief back to the.beginning of the limitations period strikes a reasonable balance between permittingredress of an ongoing wrong and imposing liability for conduct long past”); see alsoKimzey, 107 F.3d at 572-73. Various of the plaintiffs contend that the trial court misapplied the principlesapplicable to continuing-violation cases in several ways. We turn first to the trialcourt’s exclusion of evidence about any events that occurred before January 1, 1989(more than four years before the limitations period began), in relation to Ms. Kline’sdisparate treatment and hostile work environment claims. (The trial court’s orderexcluding that evidence explicitly declined to do so with respect to Ms. Wedow,Ms. Morgan, and Ms. Taylor, and thus on appeal we consider this issue only withrespect to Ms. Kline. See Fed. R. App. P. 10(2), Fed. R. App. P. 28(e)). Ms. Klineasserts that the trial court’s cutoff date of January 1, 1989, for evidence on her disparatetreatment and hostile work environment claims was arbitrary and that for those claimsthe trial court should have admitted all evidence concerning her work since she wasfirst hired at the Fire Department. The city contends that Ms. Kline’s offer of proof was insufficient. “An offer ofproof serves dual purposes: (1) to inform the [trial] court and opposing counsel of thesubstance of the excluded evidence, enabling them to take appropriate action; and (2)to provide an appellate court with a record allowing it to determine whether theexclusion was erroneous and whether [the] appellant was prejudiced by the exclusion.”Thomas v. Wyrick, 687 F.2d 235, 239 (8th Cir. 1982), cert. denied, 459 U.S. 1175(1983). Having reviewed the offer of proof that Ms. Kline submitted to the trial courton this issue, we believe that it was adequate to serve both of these purposes. We havenot considered the depositions that were cited in the offer of proof at trial but notprovided to this court on appeal. We believe, furthermore, that the trial court properly concluded that no pre-1989events could be considered part of a continuing violation relevant to Ms. Kline’s.disparate treatment claim. Two of those events involved discipline that Ms. Klinereceived in 1977, but because of the time lapse between 1977 and 1989, the trial courtquite correctly found that the 1977 events involved isolated acts that were not part ofa continuing violation. The remaining incident occurred in 1986 and concerned aninjury that Ms. Kline was told to ignore. We agree with the trial court that that incidentwas also merely an isolated act. Even if the trial court erroneously excluded the 1986event, moreover, the error is harmless. Because Ms. Kline could recover only forincidents that occurred within the limitations period, the 1986 event could have beenused only as background evidence and, in our view, is highly unlikely to have affectedthe verdict of the jury on Ms. Kline’s disparate treatment claim. As for Ms. Kline’s hostile work environment claim, however, we believe that thetrial court should have allowed evidence of pre-1989 events. In her offer of proof onthis issue, Ms. Kline provided evidence of a consistent chain of discriminatory acts andworking conditions that were sufficient to constitute a continuing violation that beganprior to 1989. The trial court should therefore have admitted that evidence as “relevantbackground,” Kimzey, 107 F.3d at 573, at the very least. Ms. Kline prevailed on theissue of liability on this claim, however, so the only harm she could have suffered fromthe exclusion of this evidence would be with respect to damages. In this circuit,though, damages may not be predicated on events that occur prior to the limitationsperiod. See id. at 572-73; Gipson v. KAS Snacktime Co., 83 F.3d 225
, 230 (8th Cir.1996); and Ashley, 66 F.3d at 168. The error was therefore harmless. Ms. Wedow and Ms. Morgan assert that the trial court improperly failed toconsider events occurring outside the statutory limitations period when it grantedsummary judgment to the city on their hostile work environment claims. It is clear fromthe face of the trial court’s orders granting summary judgment, however, that it did infact consider such evidence, along with events that occurred within the statutory period.The trial court determined that the events in question involved isolated acts rather than.parts of a continuing violation. We believe that the trial court was correct in itsconclusion. Ms. Wedow’s hostile work environment claim was based on a series of eventsthat ended in 1986 and on individual incidents that occurred in 1989 and 1993. Thetrial court determined that these were isolated incidents that did not amount to acontinuing violation. Given the length of time that transpired between these three acts,we affirm this ruling. Ms. Morgan’s hostile work environment claim was based on aseries of acts that ended in 1981, subsequent acts that caused her to accept a voluntarydemotion in 1987, and acts that occurred several years later. The trial court found thatall these acts were isolated rather than parts of a continuing violation. We agree.Ms. Wedow and Ms. Morgan further contend that all of this evidence shouldhave been considered “relevant background,” Kimzey, 107 F.3d at 573, quite apartfrom any role as evidence of a continuing violation. We disagree. The evidence inquestion involved isolated acts that occurred several years before the limitations periodbegan; those acts thus had little or no probative value but did present a substantial riskof confusion of the issues and unfair prejudice. See Fed. R. Evid. 402, Fed. R. Evid.403. In our view, if that evidence had been admitted, an appreciable risk would haveexisted that the jury would award damages because of acts for which the statute oflimitations had run, or that the jury would confuse the relevant acts with continuingviolations. II. In a related vein, Ms. Kline, Ms. Wedow, and Ms. Morgan contend that the trialcourt erred in instructing the jury that liability and damages on any claim could bepredicated only on acts that took place within the limitations period. As noted above,our cases are clear that a plaintiff may be compensated only for such acts. See Kimzey,107 F.3d at 572-73; Gipson, 83 F.3d at 230; and Ashley, 66 F.3d at 168. The plaintiffsargue, nonetheless, that Ashley and the cases applying its principles have recently been.contradicted by Jenson, 130 F.3d at 1287, because, according to the plaintiffs’ brief onappeal, “in Ashley it is clear that the plaintiff was limited to recovering to the beginningof the limitation period while in Jenson it is clear that relief is predicated on acts thatpredated the statute of limitations period.” Plaintiffs have misread the cases. The Jenson opinion held only that the decisionabout liability (whether or not a plaintiff will recover) could be based partially ontime-barred events, not that a plaintiff could actually recover damages for those events.See Jenson, 130 F.3d 1302-03. Damages are not thus “predicated on” time-barredevents as plaintiffs contend. The cases are not, therefore, in conflict, and theinstructions limiting the recovery of damages to events that happened within thelimitations period were therefore correct. See Gipson v. KAS Snacktime Co., 1999WL 153038, *1 & *6 n.3 (8th Cir. Mar. 12, 1999). Ms. Kline, Ms. Wedow, and Ms. Morgan challenge the jury instructions on thedisparate treatment and retaliation claims. The plaintiffs maintain that the instructionsimproperly directed the jury to find for the plaintiffs only if disparate treatment orretaliation took place during the statutory limitations period.The disparate treatment claims were pleaded as continuing violations but reliedon discrete acts of discrimination within the limitations period. Evidence from outsidethat period was therefore admissible as “relevant background,” Kimzey, 107 F.3d at573, but could not be the basis for liability on the disparate treatment claims unless thedisparate treatment occurred during the limitations period. That is what the instructionsin question required. The benefit of a continuing-violation theory in suits that rely ondiscrete acts is that a plaintiff may “challenge ongoing discriminatory acts even ifsimilar illegal acts could have been challenged earlier and are thus time-barred,”Ashley, 66 F.3d at 168, not that defendants may be held liable for acts outside thelimitations period. The challenged instructions were thus not erroneous.. With respect to the retaliation claims, no continuing violation was pleaded.Those claims thus had to have been based on discrete acts within the limitations period.The relevant instructions could not therefore have been infirm on account of anyconsideration related to a continuing-violation theory, and, accordingly, the trial courtproperly instructed the jury that liability for retaliation could be based only on acts thatoccurred during the limitations period. An instruction relevant to the defendant’s liability on Ms. Kline’s hostile workenvironment claim was, however, erroneous. That instruction directed the jury to findfor Ms. Kline if conduct occurring within the limitations period met the criteria for ahostile work environment. But when, as here, some of the unlawful acts could establisha continuing violation, a jury need not find that conduct only within the limitationsperiod established the defendant’s liability on a hostile work environment claim.Instead, the jury may base part of its determination that a hostile environment existedon evidence of events outside the limitations period, as long as the violation continuedinto that period and included at least one unlawful act during that period. See id. at1303. The trial court therefore erred in instructing the jury on Ms. Kline’s hostile workenvironment claim. We believe nevertheless that the error was harmless. Because the trial courtgranted summary judgment to the city on the hostile work environment claims ofMs. Wedow and Ms. Morgan, the offending instruction applied only to the hostile workenvironment claims of Ms. Kline and Ms. Taylor. Ms. Kline prevailed on her hostilework environment claim, and Ms. Taylor does not argue that this instruction waserroneous. Furthermore, although Ms. Kline also contends that the instructionprejudiced her with respect to damages, we disagree, because even in a continuingviolation, damages may not be awarded for acts that are time-barred.. III. The plaintiffs also contend that the trial court should have admitted evidence of discrimination that other women suffered at the Fire Department. We note initially that the trial court did in fact admit evidence tending to show that the city employees whoallegedly discriminated against the plaintiffs also discriminated against other women.The trial court admitted that evidence under Fed. R. Evid. 404(b) because it wasrelevant with respect to the defendant’s knowledge of unlawful conduct toward theplaintiffs and its refusal to remedy it. With respect to other employees of the FireDepartment, however, we fail to see how evidence of any discrimination by themagainst women other than the plaintiffs would tend to prove that the plaintiffs werediscriminated against. See Fed. R. Evid. 402. Any probative value of this evidence,moreover, would be substantially outweighed by the threat of confusion of the issuesand unfair prejudice. See Fed. R. Evid. 403; see also Callanan v. Runyun, 75 F.3d1293, 1298 (8th Cir. 1996) (upholding a similar exclusion). Ms. Kline, Ms. Wedow, and Ms. Morgan assert that evidence about employeesother than those who allegedly discriminated against them should have been admittedas relevant to motive, opportunity, intent, or knowledge on the part of the city. SeeFed. R. Evid. 404(b). We agree with the trial court that the acts of people who did notsupervise or allegedly discriminate against the plaintiffs (and who in most cases did noteven work in the same area as the plaintiffs) are not probative of the city’s motive,opportunity, intent, or knowledge. What little probative value such evidence mighthave, in any case, would be substantially outweighed by the threat of confusion of theissues and unfair prejudice. See Fed. R. Evid. 403. IV. Finally, Ms. Kline, Ms. Wedow, and Ms. Taylor contend that the trial courtshould have admitted evidence of discrimination with respect to clothing and facilitiesas relevant to their hostile work environment claims. We agree.The EEOC complaint did allege a hostile work environment, and although it didnot specifically recite the excluded evidence in support of that claim, the law does notrestrict a plaintiff at trial to the evidence recited in an EEOC complaint. “In a hostilework environment claim, evidence concerning all circumstances of the complainant’semployment must be considered.” Kimzey, 107 F.3d at 573. The treatment of theplaintiffs with respect to clothing and facilities was a part of their work environmentand therefore should have been considered in evaluating their hostile work environmentclaims. We believe, however, that the error was harmless. With regard to Ms. Kline, weobserve first that she prevailed on the issue of liability with respect to her hostile workenvironment claim. The only harm that she could have suffered from the exclusion ofthe clothing and facilities evidence, therefore, would have been relevant to damages.Pursuant to a jury instruction that directed the jury to award Ms. Kline nominaldamages if it found in her favor on liability but decided that her injuries had nomonetary value, the jury awarded her only nominal damages ($1). The acts that led tothis award included numerous unwanted sexual advances and insults. The evidencethat Ms. Kline contends should have been admitted concerned the poorly fittingclothing, the failure of supervisors to respond to requests to buy firefighting clothingdesigned for women, unequal bathroom facilities, and the lack of privacy in thebathrooms. Those alleged conditions were manifestly less severe and pervasive thanthe ones for which Ms. Kline prevailed on liability, and we thus believe that the jurywould have declined to award any additional damages for them. The only potentialharm to Ms. Kline, therefore, would be in the calculation of punitive damages. Sincethe trial court vacated the award of punitive damages, however (a ruling that we affirmbelow), any error here was harmless. The trial court correctly found in its summary judgment order that Ms. Wedow’s hostile work environment claim was based on only one act but that there was no evidence from which a jury could conclude that Ms. Wedow’s supervisors were aware. of that act. Only the clothing and facilities evidence would have remained, therefore,even if considered, to defeat summary judgment on Ms. Wedow’s hostile workenvironment claim. That evidence concerned poorly fitting clothing, the lack offirefighting clothing designed for women, deficient bathroom facilities for women (therewas no shower), and the lack of privacy in the bathrooms and the bunk area.Ms. Wedow’s claim could have survived summary judgment only if these conditionswere “sufficiently severe or pervasive ‘to alter the conditions of [the plaintiff's]employment and create an abusive working environment.’ ” Meritor Savings Bank v.Vinson, 477 U.S. 57, 67 (1986), quoting Henson v. City of Dundee, 682 F.2d 897, 904(11th Cir. 1982). We do not believe that the evidence on clothing and facilities was sufficient to carry that burden. It does not tend to prove the level of severity that we havepreviously found necessary to sustain claims of this sort. For example, in Rorie, 151F.3d at 762, we found that the facts that the plaintiff alleged were “on the borderlineof those sufficient to support a claim,” where those facts consisted of the plaintiff’ssupervisor frequently brushing up against her, telling her that she smelled good, andpatting her on the back. We think that those allegations were more serious than thegeneral discomfort that Ms. Wedow alleged with respect to clothing and facilities, andwe therefore believe that even if the evidence on clothing and facilities had beenconsidered, Ms. Wedow’s hostile work environment claim could not have survivedsummary judgment. Any error in excluding that evidence was therefore harmless.It is unclear to us whether Ms. Taylor appeals on this issue. We doubt, however,that the admission of the clothing and facilities evidence would have bolstered herclaim in any event. Unlike Ms. Kline and Ms. Wedow, who were firefighters and oftenhad to wear firefighting clothing, and spend nights and take showers at the fire station,Ms. Taylor was a clerical worker. The conditions of which Ms. Kline and Ms. Wedowcomplain in their hostile work environment claims were altogether irrelevant toMs. Taylor’s work environment (in fact, there is no evidence that she was even subject.to these conditions). Any error in this regard was therefore harmless with respect toher as well. V. Ms. Kline and Ms. Taylor also contest the trial court’s order vacating the jury’s award of punitive damages under the MHRA. They maintain that the city failed to raise and properly preserve this issue at trial because the city made no motion for judgmentas a matter of law with respect to punitive damages. See Fed. R. Civ. P. 50(a)(1).That rule, however, governs motions for judgment as a matter of law based oninsufficient evidence and is therefore irrelevant in this context. The city objected topunitive damages at trial on the ground that the statute does not authorize them (not thatinsufficient evidence existed to support such an award) and objected to the juryinstruction on punitive damages, see Fed. R. Civ. P. 51, and therefore raised andproperly preserved the issue. We believe that the trial court was correct in vacating the punitive damages awards. Because the burden of a punitive damages award against a municipalityultimately falls on the taxpayers, and thus will fail to deter future harmful activity bythe municipality itself, punitive damages are not usually recoverable against amunicipality in Missouri. See Chappell v. City of Springfield, 423 S.W.2d 810, 814-15 (Mo. 1968) and Angelo v. City of Hazelwood
, 810 S.W.2d 706
, 707 (Mo. App.1991). A municipality in Missouri is subject to punitive damages only if a statutespecifically provides that it is. See, e.g., id. at 813-14. Ms. Kline and Ms. Taylor argue that the MHRA does in fact specifically providefor punitive damages against municipalities, because the act’s definition of “employer”"includes the state, or any political or civil subdivision thereof,” see Mo. Rev. Stat.� 213.010(7), and because another section of the act provides that a court may awardpunitive damages to a prevailing party, see Mo. Rev. Stat. � 213.111.2. But theMHRA is a voluminous statute with many provisions and definitions. See Mo. Rev..Stat. � 213.010-213.139. We believe that a result cobbled together from differentsections of the statute is insufficiently explicit under the Missouri cases to overcomethe presumption against punitive damages when a municipality is a defendant that hasbeen found liable. We therefore reject the plaintiffs’ contentions in this respect. VI. The city cross-appeals the judgment entered in favor of Ms. Taylor on herdisparate treatment claim, arguing that there was insufficient evidence of intentionaldiscrimination. Ms. Taylor responds that the city failed to preserve this issue for appealbecause the city did not renew the motion for judgment as a matter of law, see Fed. R.Civ. P. 50(b), that it made at the close of the plaintiffs’ evidence, see Fed. R. Civ. P.50(a). She cites Pulla v. Amoco Oil Co., 72 F.3d 648 (8th Cir. 1995), for theproposition that a party that fails to move for judgment as a matter of law at the closeof all of the evidence is barred by Fed. R. Civ. P. 50(b) from arguing the sufficiency ofthe evidence post-trial or on appeal. That case is inapplicable here. First of all, in Pulla, 72 F.3d at 655-56, the appellant failed to make any motion for judgment as a matter of law prior to submission of the case to the jury. It is not even contended that that is the case here. Instead, it is the form of the motion that Ms. Taylor contests. She asserts that, although the city made both oral and written motions for judgment as a matter of law at the close of theplaintiffs’ evidence, it “merely renewed them” at the close of its own evidence and againat the close of all of the evidence. Ms. Taylor argues that these renewals did not satisfy the rule’s requirement that motions specify the grounds on which the moving party is relying. See Fed. R. Civ. P. 50(a)(2). We disagree. Once a sufficient motion for judgment as a matter of law has been made, nothing in the law requires the movant continually to make arguments or to file written motions repeating the details of the original over and over again. We believe that it is sufficient for the movant, as the city did here, simply to renew themotion generically. The city’s substantive argument is that its motion for judgment as a matter of law should have been granted because Ms. Taylor failed to present sufficient evidence of intentional discrimination. Ms. Taylor’s theory of the case throughout the trial was thatshe was treated differently from similarly situated men. The city contends that she didnot prove disparate treatment because the males to whom she compared herself werenot, in fact, similarly situated to her. Ms. Taylor bore the burden of proving that she and the male employees to whom she compared herself at trial were ” ‘similarly situated in all relevant respects,’ ” Smith v. Monsanto Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986), quoting Meyers v. Ford Motor Co., 659 F.2d 91, 93 (8th Cir. 1981).Ms. Taylor, a clerical employee, was accused of poor job performance. The three mento whom she claims she was similarly situated were J.W.S. (a fire inspector), P.C. (afirefighter), and L.G. (a fire dispatcher), each of whom was accused of specific ruleviolations. We have held that employees accused of poor job performance are notsimilarly situated to employees accused of misconduct. Boner v. Board ofCommissioners, 674 F.2d 693, 697 (8th Cir. 1982) (plaintiff’s poor job performancenot similar to misconduct in the form of embezzlement). J.W.S. was verbally abusive to an employee of the city Finance Department while on duty, and was involved in an altercation with a security guard (for which he was charged with assault) while in uniform and off duty. His supervisor charged him with violations of the personnel rules and of the Fire Department Rules and suspended him until the assault case was decided. After the suspension, J.W.S. was told that he could either resign or face charges for verbal abuse. P.C. was charged with sleepingon the job and violating the fire code by bringing his vehicle inside a building whenacting as a fire guard at an event. His supervisor removed his overtime card from the.fire guard box (the card was later returned because it had not been made clear thatbringing a vehicle inside the building was a violation). L.G., who served under adifferent supervisor and in a different facility from Ms. Taylor, had his pay docked forreading another worker’s e-mail. The performance-related matters for which Ms. Taylor was terminated (inadequate typing skills, mistakes in correspondence, and poor time management,among others) are not similar to the specific instances of misconduct described above.Ms. Taylor offered no evidence to demonstrate that she was treated differently fromthese men, or any other men, with respect to job performance. She was not, therefore,similarly situated to these men in all relevant respects, and the verdict in her favorcannot stand. VII. For the reasons stated, we affirm the judgment of the trial court in all respects on the plaintiffs’ appeal but reverse the judgment in favor of Ms. Taylor’s disparate treatment claim. We remand the case for the entry of appropriate orders. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
KATHLEEN KLINE, ANNE WEDOW, AND ERMA MORGAN, Appellants, and BETTY TAYLOR, Appellant/Cross-Appellee, v. CITY OF KANSAS CITY, MISSOURI, FIRE DEPARTMENT, Appellee/Cross-Appellant. Nos. 98-1593/1846 United States Court of Appeals, Eighth Circuit Appeals from the United States District Court for the Western District of Missouri. Submitted: 1/14/99 Filed: 5/5/99 Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.