The full case caption appears at the
end of this opinion. WEBB, District Judge. I. Wax Works, Inc. (Wax Works) appeals a post-trial order of the United StatesDistrict Court for the Northern District of Iowa,
[FOOTNOTE 2] denying its motion for JAML, or,alternatively, new trial, following a jury verdict in favor of plaintiff/appellee Kerry D. Ogden (Ogden) on her claims of unlawful employment discrimination in violationof Title VII.
[FOOTNOTE 3] Following a five day trial, the jury found Ogden was subjected tohostile environment and quid pro quo sexual harassment, and retaliation, and furtherfound Ogden was constructively discharged. The jury awarded Ogden $40,000.00in compensatory damages, $792.00 in pre-termination back pay, $75,599.00 inpost-termination back pay, and $500,000.00 in punitive damages ($300,000.00 onthe hostile environment claim and $200,000.00 on the retaliation claim). Thedistrict court entered judgment accordingly, save for the punitive damages award,which was reduced to $260,000.00 pursuant to 42 U.S.C. � 1981a(b)(3)(D). Thedistrict court also awarded Ogden $69,768.00 in front pay. On appeal, Wax Works argues there was insufficient evidence to supportOgden’s sexual harassment, retaliation, constructive discharge, and punitivedamages claims. Alternatively, Wax Works contends the district court abused itsdiscretion by failing to grant a new trial. We affirm. II. Predictably, the testimony “varied wildly” according to whosewitnesses were testifying. “We, of course, do not resolve these discordantaccounts[] . . . .” Howard v. Burns Bros., Inc., 149 F.3d 835, 838 (8th Cir. 1998).Rather, we consider the evidence in the light most favorable to Ogden, assuming allconflicts were resolved in her favor, assuming all facts her evidence tended to prove, and giving her the benefit of all favorable inferences that reasonably may bedrawn from the proven facts. See Morse v. Southern Union Co., 174 F.3d 917, 922(8th Cir. 1999). Wax Works owns and operates a chain of music stores under the name “DiscJockey,” along with a small chain of video stores under the name “ReelCollections.” On May 3, 1987, Wax Works hired Ogden as the sales manager for anewly-opened Disc Jockey in a Sioux City, Iowa mall. Ogden remained in thatposition until she left Wax Works in September, 1995. During her tenure, Ogden reported directly to a district manager, who wasresponsible for supervising several stores in a geographic region. Among thedistrict manager’s duties was the performance of yearly evaluations, the completionof which was a prerequisite to a sales manager’s annual raise. The district manager,in turn, reported to a regional manager, who was responsible for overseeing severaldistrict managers and their respective stores. The regional manager reported to theWax Works home office. Ogden developed into an outstanding store manager by all accounts. Sales ather store increased throughout her tenure, and she routinely received bonuses andawards for her efforts. A. The Harassment Ogden alleged she was sexually harassed by her district manager, RobertHudson, from late June-early July, 1994, until she left Wax Works in September,1995. Hudson, who lived in Omaha, Nebraska, became Ogden’s district manager in1993. Ogden described three occasions on which Hudson subjected her tounwelcome physical advances. In late June-early July, 1994, an intoxicated Hudsongrabbed Ogden by the waist and asked her to his motel room as the two wereleaving a restaurant. Ogden refused the invitation, pushed Hudson away, and toldhim not to touch her. On St. Patrick’s Day, 1995, an intoxicated Hudson twice puthis arm around Ogden while the two were in a Sioux City bar with a group ofemployees. Each time Ogden pushed Hudson away and told him to leave her alone.Hudson made a similar advance in April, 1995, which Ogden rebuffed with aphysical threat. In addition to these physical advances, Hudson propositioned Ogdenincessantly. He constantly asked her to go for drinks after work. He asked her onseveral occasions to stay with him at his home in Omaha and “party.” He asked herto a motel room during a convention in October, 1994, and on another occasionasked her to attend a concert. Hudson took an inappropriate interest in Ogden’s personal life, as well. Heonce offered to stay at Ogden’s home to “protect” her from her estranged ex- husband. He berated Ogden upon learning she had taken a canoe trip with a malecompanion. On another occasion, he became angry with Ogden when a male friendvisited her in Sioux City. When Ogden rebuffed these advances and propositions, Hudson respondedby mistreating her at work. He constantly criticized her performance and routinelyscreamed at her over work matters shortly after she refused to go out with him. Ogden’s account was corroborated at trial. Ogden’s former employee, ChrisShook, and friend, Holly Longwell, each recalled witnessing Hudson subject Ogdento unwelcome physical advances. Shook testified Hudson often asked whetherOgden had “somebody else in her life,” and expressed a desire to stay with Ogdento protect her from her ex-husband. Shook also testified Hudson yelled at Ogden infront of other employees, and treated her differently than others. Ogden also alleged Hudson conditioned her 1995 evaluation, and thereby herraise, upon her willingness to submit to his advances; and subsequently refused toeffectuate her 1995 raise in retaliation for her refusal to submit to him. In April,1995, Ogden’s regional manager, Jeff Klem, ordered Hudson to perform Ogden’sevaluation immediately to effectuate her annual raise.
[FOOTNOTE 4] Hudson did not do so,however, despite several subsequent requests by Ogden. Instead, he “held Ogden’sevaluation over her head.” Finally, in late June, 1995, Hudson told Ogden he would perform her evaluation if she agreed to accompany him on a “three-day gamblingspree.” When Ogden ultimately refused, Hudson responded by berating her over apersonnel matter, and refusing her request to take a vacation. Hudson subsequentlyrefused yet another request from Ogden to conduct her evaluation. Ogdenultimately left Wax Works without her 1995 raise. Ogden also testified that prior tothese events, Hudson made no secret of his predilection for affairs with otheremployees, and boasted of the raises and promotions he procured for those withwhom he was involved. Moreover, Hudson told Ogden she would not havereceived a raise in 1994, if not for his efforts. Ogden and others described the impact Hudson’s mistreatment had upon herphysical and mental health. On several occasions, Hudson’s beratings causedOgden to leave work in tears. Her personality changed completely, from outgoingto withdrawn. She became depressed and lost interest in doing anything outside ofwork. She was unable to sleep or eat, and lost some 40 pounds between Januaryand August of 1995. She fell ill for days at a time and consequently missed morework. She began drinking and smoking to excess. B. Wax Works’ Response On August 9, 1995, a confrontation arose between Ogden and Hudson overHudson’s desire to promote Shook to manage a store in Sioux Falls, South Dakota.Ogden initially called Klem to protest the move, but Klem told her to address herconcerns directly to Hudson. Ogden balked at first, telling Klem she feared Hudson.When Ogden ultimately confronted Hudson, he “exploded,” threatening to block future raises for Ogden’s employees and “squish [her] out like a little fly.” Theconfrontation ended with Hudson following Ogden to her car, screaming andsmacking his fist. Two days later, Ogden called Klem and described the confrontation. She alsoreported to Klem that Hudson yelled at her because she would not go out with him.According to Ogden, Klem responded “I know exactly what you’re telling me. Iknow about [Hudson's affairs with other employees], and [Hudson's] been warnedbefore[] . . . .”
[FOOTNOTE 5] Ogden threatened to quit should Hudson remain her supervisor, butKlem urged her not to do so, and told her he would address her complaints to thehome office. When the two spoke a few days later, however, Klem told Ogden he hadbeen assured by Hudson that the matter was merely a personality conflict, whichhad since been resolved. Ogden insisted this was not the case; rather, Hudson hadbeen “treating her like a dog” because she refused to go out with him. She also described more of Hudson’s objectionable conduct, including his offers to stay ather home. Klem ultimately agreed to travel to Sioux City to meet with all partiesinvolved. According to Ogden, however, his demeanor had “totally changed” fromtheir prior conversation; he “minimize[d] [Hudson's conduct] just like nothing hadhappened.” Klem visited Sioux City as promised August 21-24, 1995, but Ogden wasunable to meet with him due to illness.
[FOOTNOTE 6] Klem interviewed several of Ogden’semployees during his visit, but one of them, Shook, testified his questions focusedupon Ogden’s performance, rather than Hudson’s conduct. For her part, Ogden called Klem after he left Sioux City and offered todiscuss her complaints over the phone. Klem refused, stating “You didn’t come in.You missed your chance.” Klem told Ogden that Wax Works viewed Hudson asan “asset” to the company and saw no reason to fire him. Ogden then askedwhether, in the wake of her allegations, she could continue to work for Hudson.Klem replied, “No, you can’t.” Ogden left Wax Works on September 9, 1995. Shetwice called the home office in an attempt to address her complaints to a vicepresident prior to her departure, but her calls went unreturned. Ogden was physically and emotionally devastated by Hudson’s harassmentand the loss of her position. Her psychotherapist testified she suffered from posttraumatic stress disorder and major depression, and attributed these maladies toHudson’s abuse. After spending several months confined to her home, sheeventually secured two part-time jobs, one in sales, the other in light janitorial work,at significantly reduced pay and responsibility. Hudson, meanwhile, received nodiscipline for his behavior, and nothing about the incident was placed in hispersonnel file. After filing the requisite complaints with state and federal agencies,and receiving notice of her right to sue, Ogden brought this action on December 9,1996. During Ogden’s tenure, Wax Works distributed to all store managers anemployee handbook containing the following summary of its sexual harassmentpolicy:
* Sexual Harassment Unwelcome sexual advances, request[s] for sexual favors and otherverbal or physical conduct of a sexual nature constitutes sexualharassment. Sexual harassment exists if this type of conduct becomesa condition of an individual’s employment, or it is used as a basis foremployment decision[s]. Also, sexual harassment constitutes conductwhich interferes with an individual’s work performance or creates anintimidating work environment. Employees are encouraged to report any alleged violations of thispolicy immediately to a member of management or directly to theDirector of Human Resources. All such complaints will be held inconfidence and will be investigated thoroughly. Appropriate actionwill be taken.
Additionally, Wax Works posted signs in stores encouraging employees with grievances to call the home office toll-free. Ogden received no training with regardto the sexual harassment policy, however, and Wax Works admittedly provided nosuch training during her tenure. Hudson testified to his familiarity with the policy, and stated that he hadreceived “extensive training on sexual harassment issues” in conjunction with hisM.B.A. III. We review the denial of a motion for judgment as a matter of law de novo,using the same standards as the district court. [FOOTNOTE 7] Douglas County Bank & Trust Co.v. United Fin. Inc., 207 F.3d 473, 477 (8th Cir. 2000). “Because the law places ahigh standard on overturning a jury verdict, JAML is proper only when there is acomplete absence of probative facts to support the conclusion reached so that noreasonable juror could have found for the nonmoving party.” Blackmon v.Pinkerton Sec. & Investigative Serv., 182 F.3d 629, 635 (8th Cir. 1999). Our reviewis extremely deferential; to prevail on its motion for JAML, Wax Works faces thedifficult task of demonstrating all the evidence points in its direction and is susceptible of no reasonable interpretation sustaining Ogden’s position. See Morse,174 F.3d at 922. Wax Works first argues there was insufficient evidence to support Ogden’squid pro quo[FOOTNOTE 8] and hostile environment[FOOTNOTE 9] sexual harassment claims. We disagree, andwe find these arguments merit little discussion. Ogden’s testimony supported thejury’s conclusion that her submission to Hudson’s unwelcome advances was acondition for receiving her 1995 raise, and her refusal to submit to his advancesresulted in the denial of the same. See Cram v. Lamson & Sessions Co., 49 F.3d466, 473 (8th Cir. 1995). Moreover, the jury reasonably concluded the drumbeat of physical advances, propositions, and mistreatment Ogden endured from Hudson formore than a year was both unwelcome and offensive, and sufficiently severe orpervasive to alter the conditions of Ogden’s employ and create an objectively hostileor abusive work environment. See Howard, 149 F.3d at 840 (citing Harris v.Forklift Sys., Inc., 510 U.S. 17, 21 (1993) and Meritor Sav. Bank v. Vinson, 477U.S. 57, 67 (1986)). Of course, in “supervisor harassment” cases such as this, the terms “quid proquo” and “hostile environment” remain relevant only to the extent they illustrate theevidentiary distinction between cases involving threats which are carried out andthose featuring offensive conduct in general. Burlington Indus., Inc. v. Ellerth, 524U.S. 742, 751-54 (1998). Once a plaintiff proves discrimination under either theory,we turn to the standards announced by the Supreme Court in Ellerth and Faragher todetermine whether the employer may be held liable for the supervisor’s conduct. InEllerth and Faragher, the Supreme Court established that under Title VII, employersare vicariously liable for hostile environment sexual harassment perpetrated by asupervisor. Ellerth, 524 U.S. at 764-65; Faragher v. City of Boca Raton, 524 U.S.775, 807-08 (1998). Where the plaintiff suffers no tangible employment action,however, the employer is entitled to establish by a preponderance of the evidence anaffirmative defense consisting of two elements: (a) the employer exercisedreasonable care to prevent and correct promptly any sexually harassing behavior,and (b) the plaintiff employee unreasonably failed to take advantage of anypreventive or corrective opportunities provided by the employer or to avoid harmotherwise. Ellerth, 524 U.S. at 764-65; Faragher, 524 U.S. at 807-08. Here, the district court instructed the jury to consider the defense with respectto Ogden’s hostile environment claim, but not her quid pro quo claim. In retrospect,however, the court questioned whether Wax Works was entitled to avail itself of thedefense at all. We agree with the district court. The Ellerth/Faragher rule is clear:”No affirmative defense is available[] . . . [] when the supervisor’s harassmentculminates in a tangible employment action . . . .” Ellerth, 524 U.S. at 764-65;Faragher, 524 U.S. at 807-08. Even assuming Wax Works was entitled to raise the defense, it wasreasonably rejected by the jury. There was substantial evidence indicating that WaxWorks neither conducted the “thorough investigation” nor took the “appropriateaction” promised by its sexual harassment policy, belying its claim to have exercisedreasonable care to “prevent and correct promptly . . . sexually harassing behavior.”According to the testimony of Ogden and others, Wax Works “minimized” hercomplaints; performed a cursory investigation which focused upon her performance,rather than Hudson’s conduct; and forced her to resign while imposing no disciplineupon Hudson for his behavior. See Baty v. Williamette Indus., Inc., 172 F.3d 1232,1242-43 (10th Cir. 1999)(finding the lack of disciplinary action against a harassingemployee relevant to an analysis of the employer’s response). Moreover, the jurycould have reasonably concluded Ogden took advantage of the “opportunities”afforded by Wax Works and/or attempted to “avoid harm otherwise.” Shecomplained to a member of Wax Works management (Klem), arguably in accordance with the company’s sexual harassment policy, [FOOTNOTE 10] and on severaloccasions directly told Hudson to stop his offensive conduct. Wax Works next argues Ogden’s retaliation claim [FOOTNOTE 11] must fail because she didnot engage in the “protected activity” requisite for this theory of liability. Ogdenmaintains she engaged in “the most basic form of protected activity” when she toldher supervisor, Hudson, to stop his offensive conduct. See Quarles v. McDuffieCounty, 949 F.Supp. 846, 853 (S.D. Ga. 1996). We agree with Ogden. Employersmay not retaliate against employees who “oppose discriminatory conduct,” see 42U.S.C. � 2000e-3(a), and the jury reasonably concluded Ogden did so when she toldHudson to stop his offensive behavior. Cf. E.E.O.C. v. HBE Corp., 135 F.3d 543,554 (8th Cir. 1998). Ogden’s testimony further supported the jury’s conclusion thatHudson’s denial of her raise was causally connected to her opposition. [FOOTNOTE 12] See Scusav. Nestle U.S.A. Co., Inc., 181 F.3d 958, 968 (8th Cir. 1999). Wax Works next argues there was insufficient evidence to support Ogden’sconstructive discharge. [FOOTNOTE 13] We disagree. The jury reasonably concluded Hudson’sharassment rendered Ogden’s working conditions objectively intolerable; and, givenOgden’s testimony that Klem told her she could no longer remain with the companyin the wake of her allegations, that Wax Works either intended to force Ogden toresign or could have reasonably foreseen she would do so. See Kerns v. CapitalGraphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999). In addition, we have held if anemployee quits because she reasonably believes there is no chance for fairtreatment, there has been a constructive discharge. Kimzey v. Wal-Mart Stores,Inc., 107 F.3d 568, 574 (8th Cir. 1997). The jury could have so concluded here,given Wax Works’ response to Ogden’s complaints. See Van Steenburgh v. RivalCo., 171 F.3d 1155, 1160 (8th Cir. 1999). [FOOTNOTE 14] Wax Works next argues there was insufficient evidence to support thepunitive damages award. Our inquiry into this issue is now governed by Kolstad v.American Dental Ass’n, 119 S.Ct. 2118 (1999), rendered June 21, 1999, while theparties were briefing this appeal. In Kolstad, the United States Supreme Court clarified “[t]he precise burden aplaintiff must carry to prove malice or recklessness for purposes of 42 U.S.C. �1981a(b)(1) . . . .” E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1244 (10thCir. 1999)(citing Kolstad, 119 S. Ct. 2118 (1999)). “Under the terms of [�1981a(b)(1)], . . . punitive damages are available in claims under Title VII . . . .[where] the employer has engaged in intentional discrimination and has done so’with malice or with reckless indifference to the federally protected rights of anaggrieved individual.’” Kolstad, 119 S. Ct. at 2121 (citing � 1981a(b)(1)). TheKolstad Court rejected an interpretation which would have required “egregious”conduct by an employer before punitive damages could be available under thisprovision. [FOOTNOTE 15] Id. at 2124. Instead, the Court interpreted � 1981a(b)(1) to provide forpunitive awards based solely on an employer’s state of mind: “The terms ‘malice’ or’reckless indifference’ pertain to the employer’s knowledge that it may be acting inviolation of federal law, not its awareness that it is engaging in discrimination.” Id.Applying this standard in the context of � 1981a, the Court held an employer mustat least discriminate in the face of a “perceived risk that its actions will violatefederal law” to be liable in punitive damages. Id. at 2125. The Court made clear, however, that the punitive damages inquiry doesnot end with a showing of the requisite malice or reckless indifference on the part ofcertain individuals; the plaintiff must impute liability for punitive damages to theemployer. See Kolstad, 119 S. Ct. at 2126. For these purposes, the Court adoptedthe Restatement (Second) of Agency � 217C, which, of relevance to this appeal,”contemplates liability for punitive awards where an employee serving in a’managerial capacity’ committed the wrong while ‘acting in the scope ofemployment.’” Id. (citing Restatement (Second) of Agency, � 217C)). Allowingthat “no good definition of what constitutes a ‘managerial capacity’ has beenfound[,]” the Court suggested a “ factual inquiry” focusing upon “the type ofauthority that the employer has given to the employee, [and] the amount ofdiscretion that the employee has in what is done and how it is accomplished.” Id. at2128-29 (citing Restatement (Second) of Torts, � 909). The Court interpreted the”scope of employment” requirement broadly: “[I]ntentional torts are within thescope of an agent’s employment if the conduct is ‘the kind [the employee] isemployed to perform,’ ‘occurs substantially within the authorized time and spacelimits,’ and ‘is actuated, at least in part, by a purpose to serve the’ employer. [S]olong as these rules are satisfied, an employee may be said to act within the scope ofemployment even if the employee engages in acts ‘specifically forbidden’ by theemployer and uses ‘forbidden means of accomplishing results.’” Id. (citingRestatement (Second) of Agency, �� 228, 230). “Recognizing Title VII as an effort to promote prevention as well asremediation, and observing the . . . limits on vicarious liability for punitivedamages,” the Court created an exception to the Restatement rule whereby an employer may escape vicarious liability for the discriminatory employment decisionsof managerial agents where those decisions are contrary to the employer’s “goodfaith efforts to comply with Title VII.” See Kolstad, 119 S. Ct. at 2129. TheCourt left to lower courts the determination of what measures constitute “good faithefforts,” stating only that “Title VII is designed to encourage the creation of anti-harassmentpolicies and effective grievance mechanisms[,]” and “ [t]he purposesunderlying Title VII are similarly advanced where employers are encouraged toadopt anti-discrimination policies and to educate their personnel on Title VII’sprohibitions.” Kolstad, 119 S. Ct. at 2129. Because Wax Works did not object to the punitive damages instruction in thedistrict court or on appeal, we apply Kolstad to the record before us, asking whethera reasonable jury could find Wax Works liable for punitive damages. [FOOTNOTE 16] We hold there is substantial evidence from which a reasonable jury could find Wax Worksliable for punitive damages under the clarified standards of Kolstad. Concerning Hudson’s malice or recklessness, Wax Works can scarcelydispute that, based on the record as discussed above, a reasonable jury could havefound Hudson’s behavior “sufficiently abusive” to manifest the requisite malice orreckless disregard for Ogden’s rights. [FOOTNOTE 17] See Kimbrough v. Loma Linda Dev., Inc.,183 F.3d 782, 785 (8th Cir. 1999). Moreover, Wax Works’ sexual harassmentpolicy forbade “[u]nwelcome sexual advances, request[s] for sexual favors andother verbal or physical conduct of a sexual nature[,]” as well as “ conduct whichinterferes with an individual’s work performance or creates an intimidating work environment.” Hudson testified to his familiarity with the policy, and claimed hereceived “extensive training on sexual harassment issues” in conjunction with hisM.B.A. A jury could therefore infer Hudson had knowledge of Title VII’sproscriptions, and given this knowledge, reasonably conclude he acted in the face ofa perceived risk that his actions would violate federal law. See Alexander v. FultonCounty, Georgia, 207 F.3d 1303, 1338 (11th Cir. 2000); Lowery, 206 F.3d at 443-44; E.E.O.C., 187 F.3d at 1246. Concerning Wax Works’ vicarious liability under the Restatement (Second)Agency �217C, there is substantial evidence that Hudson served in a managerialcapacity and acted within the scope of his employ. Hudson undisputedly supervisedseveral stores, and possessed the authority to schedule and conduct performanceevaluations, and thereby to effectuate employee raises. These duties were the kindhe was employed to perform; his abusive conduct occurred for the most part duringworking hours on Wax Works premises; and his conduct was “actuated in part toserve Wax Works.” Lowery, 206 F.3d at 444-45; E.E.O.C., 187 F.3d at 1248. SeeKolstad, 119 S. Ct. 2128-29. Concerning its purported “good faith efforts to comply with Title VII,” WaxWorks points to its written sexual harassment policy, and policy of encouragingemployees with grievances to contact the home office. “Plainly, such evidence doesnot suffice, as a matter of law,” to establish “good faith efforts” in the face ofsubstantial evidence that the company “minimized” Ogden’s complaints; performeda cursory investigation which focused upon Ogden’s performance, rather thanHudson’s conduct; and forced Ogden to resign while imposing no discipline upon Hudson for his behavior. Deffenbaugh-Williams, 188 F.3d at 286 (Wal-Mart’spolicy of encouraging employees to contact management with grievances did notsuffice to establish good faith efforts as a matter of law, in light of Wal-Mart’sfailure to respond effectively to plaintiff’s complaints).[FOOTNOTE 18] IV. A motion for a new trial should only be granted if the jury’s verdict wasagainst the great weight of the evidence so as to constitute a miscarriage of justice.Denesha v. Farmers Ins. Exch., 161 F.3d 491, 497 (8th Cir. 1998). We review thedenial of a motion for a new trial for abuse of discretion. Bevan v. Honeywell, Inc.,118 F.3d 603, 612 (8th Cir. 1997). Wax Works’ request for a new trial centers largely upon its contention thatthe district court abused its discretion when it admitted into evidence a five-minutevideotape depicting the lewd activities which took place during a 1987 companyconvention. Wax Works maintains the videotape incited the passion and prejudiceof the jury, as reflected in the verdict and damages awarded. We disagree. Theadmission of evidence is committed to the sound discretion of the district court, andwe review these decisions only for a clear abuse of discretion. Id. Here, the districtcourt allowed the videotape into evidence during rebuttal after a Wax Workswitness disputed Ogden’s account of the 1987 convention, and subsequentlyinstructed the jury to consider Wax Works’ pre-1994 conduct only as “relevant background evidence,” and not for purposes of awarding damages. Under thesecircumstances, we hold the district court did not abuse its discretion. Moreover, anew trial is not warranted on the basis of an evidentiary ruling unless the evidencewas so prejudicial that a new trial would likely produce a different result. Id. Thevideotape was not so prejudicial, in light of the substantial evidence presented byOgden in support of her case. We further find, for the reasons set forth above, that the jury’s verdict wasnot against the weight of the evidence. See id. (“A district court’s determinationthat the verdict is not against the weight of the evidence is virtually unassailable.”). Finally, we reject Wax Works’ argument that the jury’s $500,000.00 punitivedamages award was excessive. The district court reduced the award to $260,000.00pursuant to � 1981a(b)(3)(D), reducing the ratio to compensatory damages to 6.5 to1. “We do not think this amount is excessive as a matter of law, given the abusiveand repeated harassment [Ogden] suffered at the hands of supervisor [Hudson].”Kimbrough, 183 F.3d at 785 (upholding a punitive award with a 10 to 1 ratio tocompensatory damages). Affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. :::FOOTNOTES::: FN1The HONORABLE RODNEY S. WEBB, Chief Judge, United StatesDistrict Court, District of North Dakota, sitting by designation. FN2The HONORABLE MARK W. BENNETT, Chief Judge. FN342 U.S.C. � 2000e et seq. FN4Ogden routinely received $1000.00 annual raises during her tenure. In1995, she was to receive an additional $500-1,500 raise for managing a newly-openedReel Collections in the same Sioux City mall. FN5Indeed, there was evidence that Klem and other members of Wax Worksupper management were aware of Hudson’s inappropriate behavior long beforeOgden complained in August, 1995. Klem admitted at trial that he had previouslywarned Hudson to stop his inappropriate relationships with fellow employees, aswell as his inappropriate conduct with fellow employees after working hours.Moreover, Ogden testified that Klem once asked her, in Hudson’s presence,whether Hudson was causing her problems; and on another occasion told Ogden hewas aware she had problems with Hudson. Dale Taylor, a Wax Works vicepresident, also admitted he had heard “rumblings” of Hudson’s inappropriaterelationships with other employees and conduct after working hours. FN6At trial, Ogden introduced phone records to indicate she called in four timesduring Klem’s visit. FN7Ogden urges us to reject Wax Works’ request for JAML in toto due to itsfailure to renew the motion at the close of all evidence. However, the recordreflects the district court took Wax Works’ original motion under advisement aftertaking several witnesses out of order. As a result, only a short time elapsed betweenthe original motion and the close of evidence. We find it appropriate to reach themerits under these circumstances. See BE&K Constr. Co. v. United Bhd. ofCarpenters and Joiners of America, AFL-CIO, 90 F.3d 1318, 1325 (8th Cir. 1996). FN8To prevail on her quid pro quo claim, Ogden needed to prove (1) she was amember of a protected class; (2) she was subjected to unwelcome harassment in theform of sexual advances or requests for sexual favors; (3) the harassment was basedon sex; and (4) her submission to the unwelcome advances was an express orimplied condition for receiving job benefits or her refusal to submit resulted in atangible job detriment. Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir.1995). FN9To prevail on her hostile environment claim, Ogden needed to prove (1)she belonged to a protected group; (2) she was subjected to unwelcomeharassment; (3) the harassment was based on sex; and (4) the harassment affected aterm, condition, or privilege of her employment. See Schmedding v. TNEMEC Co.,Inc., 187 F.3d 862, 864 (8th Cir. 1999). Harassment affects a term, condition, orprivilege of employment if it is “sufficiently severe or pervasive to alter theconditions of the victim’s employment and create an objectively hostile or abusivework environment. Howard, 149 F.3d at 840 (citing Harris v. Forklift Sys., Inc.,510 U.S. 17, 21 (1993) and Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986)).Relevant factors for determining whether conduct rises to this level include itsfrequency; severity; whether it is physically threatening or humiliating, or a mereoffensive utterance; and whether it unreasonably interferes with an employee’s workperformance.” Id. (citing Harris, 510 U.S. at 23). FN10Wax Works can scarcely argue that Ogden’s complaints failed to providenotice of Hudson’s sexually harassing behavior. Indeed, Klem’s own notesindicated Ogden told him Hudson (1) abused her; (2) yelled at her constantly; and(3) withheld her raise. FN11To prevail on her retaliation claim, Ogden needed to prove (1) she filed acharge of harassment or engaged in other protected activity; (2) Wax Workssubsequently took an adverse employment action against her; and (3) the adverseaction was causally linked to her protected activity. See Scusa v. Nestle U.S.A. Co.,Inc., 181 F.3d 958, 968 (8th Cir. 1999). FN12Notwithstanding Wax Works’ arguments, the timing of Ogden’s priorraises is of no moment, since, according to Ogden’s testimony, Klem orderedHudson to effectuate her 1995 raise in April of that year, and Hudson did not do soat any time prior to Ogden’s departure from Wax Works in September, 1995. FN13To establish her constructive discharge, Ogden needed to show that areasonable person would have found the conditions of her employ intolerable andthat the employer either intended to force her to resign or could have reasonablyforeseen she would do so as a result of its actions. See Kerns v. Capital Graphics,Inc., 178 F.3d 1011, 1017 (8th Cir. 1999)(citations omitted). FN14Wax Works also challenges “the evidence supporting the front payaward,” and argues the award should have been capped by the district courtpursuant to 42 U.S.C. � 1981a. Wax Works has not briefed the issue beyond itsobjections to the constructive discharge claim, however, and we deem anyobjections not raised to be abandoned. See Fed. R. App. P. 28(a)(4); Kerns, 178F.3d at 1018. In any event, the district court correctly ruled that front pay is anequitable remedy excluded from the statutory limit on compensatory damages in �1981a, see Kramer v. Logan County Sch. Dist. No. R-1, 157 F.3d 620, 626 (8th Cir.1998), and properly exercised its discretion in making the award and arriving at theamount. See Ogden v. Wax Works, Inc., 29 F.Supp.2d 1003 (N.D. Iowa 1998). FN15We had previously rejected such an interpretation in Kim v. Nash FinchCo., 123 F.3d 1046, 1065 (8th Cir. 1997). FN16See, e.g., Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 436-37 (4thCir. 2000); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 282-84(5th Cir. 1999); E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir.1999). The district court’s instructions understandably did not forecast Kolstad’sprecise standards of intent and agency, or its good faith exception to vicariousliability. But, as previously mentioned, Wax Works neither requested any suchinstructions at trial nor challenges the instructions here; rather Wax Works contendsthat Ogden’s failure to submit sufficient evidence to establish her punitive damagesclaim entitles it to JAML on the issue. This presents a purely legal question to thiscourt on review, see Hyatt v. Robb, 114 F.3d 708, 711 (8th Cir. 1997), and requiresus to apply the law as it exists today, “not what the court announced the law to be inits instructions.” Grand Lab., Inc. v. Midcon Labs of Iowa, 32 F.3d 1277, 1280 (8thCir. 1994). See Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97(1993)(Supreme Court decisions apply retroactively and prospectively to all caseson direct appeal whenever applied to the litigants before the Court). Thus, thequestion becomes whether the present record contains sufficient evidence to “reveal whether a reasonable jury could have found” Wax Works liable for punitivedamages under the clarified standards of Kolstad. Todd v. Ortho Biotech, Inc., 175F.3d 595, 598-99 (8th Cir. 1999) (citing Hill v. International Paper Co., 121 F.3d168, 176-77 (5th Cir. 1997))(acknowledging this standard of review but remandingwhere the record contained insufficient evidence to apply it); see also Boyle v.United Tech. Corp., 487 U.S. 500, 513-15 (1988)(plaintiff’s right to jury trial wouldnot be denied by applying a different defense on appeal than that given to jury, ifevidence presented would not suffice, as matter of law, to support jury verdict underproperly formulated defense). We conclude the record contains ample evidence toallow us to make this determination in this case. FN17Indeed, Kolstad arguably “left intact” the jury’s determination on this issue.See Deffenbaugh-Williams, 188 F.3d at 286 (citing Kolstad, 119 S. Ct. at 2124-26).The jury was instructed, in accordance with the Supreme Court’s decision in Smithv. Wade, that it could award punitive damages only upon a finding of reckless orcallous indifference to Ogden’s rights, and its consideration was not limited to”egregious” conduct. See Kolstad, 119 S. Ct. at 2124-25 (citing Smith v. Wade,461 U.S. 30 (1983)). (“We gain an understanding of the meaning of the terms’malice’ and ‘reckless indifference,’ as used in � 1981a, from this Court’s decisionin Smith v. Wade.”). FN18See Lowery, 206 F.3d at 444-46; E.E.O.C., 187 F.3d at 1248. Cf.Blackmon, 182 F.3d at 636 (citing Carter v. Chrysler Corp., 173 F.3d 693, 702 (8thCir.1999)).
Ogden v. Wax Works, Inc. United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 99-1643 Kerry D. Ogden, Plaintiff – Appellee, v. Wax Works, Inc., Defendant – Appellant. Appeal from the United States District Court for the Northern District of Iowa Submitted: December 17, 1999 Filed: June 6, 2000 Before RICHARD S. ARNOLD, and LOKEN, Circuit Judges, and WEBB,
[FOOTNOTE 1]District Judge.
