                      United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-1643
                                     ___________

Kerry D. Ogden,                         *
                                        *
      Plaintiff - Appellee,             *    Appeal from the United States
                                        *    District Court for the Northern
      v.                                *    District of Iowa
                                        *
Wax Works, Inc.,                        *
                                        *
      Defendant - Appellant.            *
                                     ___________

                              Submitted: December 17, 1999
                                   Filed: June 6, 2000
                                      ___________

Before RICHARD S. ARNOLD, and LOKEN, Circuit Judges, and WEBB,1
District Judge.
                          ___________

WEBB, District Judge.
                                           I.
      Wax Works, Inc. (Wax Works) appeals a post-trial order of the United States
District Court for the Northern District of Iowa,2 denying its motion for JAML, or,
alternatively, new trial, following a jury verdict in favor of plaintiff/appellee Kerry


      1
         The HONORABLE RODNEY S. WEBB, Chief Judge, United States
District Court, District of North Dakota, sitting by designation.
      2
           The HONORABLE MARK W. BENNETT, Chief Judge.
D. Ogden (Ogden) on her claims of unlawful employment discrimination in violation
of Title VII.3 Following a five day trial, the jury found Ogden was subjected to
hostile environment and quid pro quo sexual harassment, and retaliation, and further
found Ogden was constructively discharged. The jury awarded Ogden $40,000.00
in compensatory damages, $792.00 in pre-termination back pay, $75,599.00 in
post-termination back pay, and $500,000.00 in punitive damages ($300,000.00 on
the hostile environment claim and $200,000.00 on the retaliation claim). The
district 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). The
district court also awarded Ogden $69,768.00 in front pay.


       On appeal, Wax Works argues there was insufficient evidence to support
Ogden’s sexual harassment, retaliation, constructive discharge, and punitive
damages claims. Alternatively, Wax Works contends the district court abused its
discretion by failing to grant a new trial. We affirm.


                                          II.


      Predictably, the testimony “varied wildly” according to whose
witnesses were testifying. “We, of course, do not resolve these discordant
accounts[] . . . .” 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 all
conflicts were resolved in her favor, assuming all facts her evidence tended to


      3
          42 U.S.C. § 2000e et seq.

                                          -2-
prove, and giving her the benefit of all favorable inferences that reasonably may be
drawn 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 “Disc
Jockey,” along with a small chain of video stores under the name “Reel
Collections.” On May 3, 1987, Wax Works hired Ogden as the sales manager for a
newly-opened Disc Jockey in a Sioux City, Iowa mall. Ogden remained in that
position until she left Wax Works in September, 1995.


      During her tenure, Ogden reported directly to a district manager, who was
responsible for supervising several stores in a geographic region. Among the
district manager’s duties was the performance of yearly evaluations, the completion
of 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 several
district managers and their respective stores. The regional manager reported to the
Wax Works home office.


      Ogden developed into an outstanding store manager by all accounts. Sales at
her store increased throughout her tenure, and she routinely received bonuses and
awards for her efforts.




                                         -3-
                                 A.   The Harassment


        Ogden alleged she was sexually harassed by her district manager, Robert
Hudson, 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 in
1993.


        Ogden described three occasions on which Hudson subjected her to
unwelcome physical advances. In late June-early July, 1994, an intoxicated Hudson
grabbed Ogden by the waist and asked her to his motel room as the two were
leaving a restaurant. Ogden refused the invitation, pushed Hudson away, and told
him not to touch her. On St. Patrick’s Day, 1995, an intoxicated Hudson twice put
his arm around Ogden while the two were in a Sioux City bar with a group of
employees. 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 a
physical threat.


        In addition to these physical advances, Hudson propositioned Ogden
incessantly. He constantly asked her to go for drinks after work. He asked her on
several occasions to stay with him at his home in Omaha and “party.” He asked her
to a motel room during a convention in October, 1994, and on another occasion
asked her to attend a concert.


        Hudson took an inappropriate interest in Ogden’s personal life, as well. He
once offered to stay at Ogden’s home to “protect” her from her estranged ex-

                                          -4-
husband. He berated Ogden upon learning she had taken a canoe trip with a male
companion. On another occasion, he became angry with Ogden when a male friend
visited her in Sioux City.


      When Ogden rebuffed these advances and propositions, Hudson responded
by mistreating her at work. He constantly criticized her performance and routinely
screamed 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, Chris
Shook, and friend, Holly Longwell, each recalled witnessing Hudson subject Ogden
to unwelcome physical advances. Shook testified Hudson often asked whether
Ogden had “somebody else in her life,” and expressed a desire to stay with Ogden
to protect her from her ex-husband. Shook also testified Hudson yelled at Ogden in
front of other employees, and treated her differently than others.


      Ogden also alleged Hudson conditioned her 1995 evaluation, and thereby her
raise, upon her willingness to submit to his advances; and subsequently refused to
effectuate 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’s
evaluation immediately to effectuate her annual raise.4 Hudson did not do so,
however, despite several subsequent requests by Ogden. Instead, he “held Ogden’s
evaluation over her head.” Finally, in late June, 1995, Hudson told Ogden he would


      4
        Ogden routinely received $1000.00 annual raises during her tenure. In
1995, she was to receive an additional $500-1,500 raise for managing a newly-
opened Reel Collections in the same Sioux City mall.

                                          -5-
perform her evaluation if she agreed to accompany him on a “three-day gambling
spree.” When Ogden ultimately refused, Hudson responded by berating her over a
personnel matter, and refusing her request to take a vacation. Hudson subsequently
refused yet another request from Ogden to conduct her evaluation. Ogden
ultimately left Wax Works without her 1995 raise. Ogden also testified that prior to
these events, Hudson made no secret of his predilection for affairs with other
employees, and boasted of the raises and promotions he procured for those with
whom he was involved. Moreover, Hudson told Ogden she would not have
received a raise in 1994, if not for his efforts.


       Ogden and others described the impact Hudson’s mistreatment had upon her
physical and mental health. On several occasions, Hudson’s beratings caused
Ogden to leave work in tears. Her personality changed completely, from outgoing
to withdrawn. She became depressed and lost interest in doing anything outside of
work. She was unable to sleep or eat, and lost some 40 pounds between January
and August of 1995. She fell ill for days at a time and consequently missed more
work. She began drinking and smoking to excess.


                             B.    Wax Works’ Response


       On August 9, 1995, a confrontation arose between Ogden and Hudson over
Hudson’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 her
concerns directly to Hudson. Ogden balked at first, telling Klem she feared Hudson.
When Ogden ultimately confronted Hudson, he “exploded,” threatening to block

                                            -6-
future raises for Ogden’s employees and “squish [her] out like a little fly.” The
confrontation ended with Hudson following Ogden to her car, screaming and
smacking his fist.


      Two days later, Ogden called Klem and described the confrontation. She also
reported 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. I
know about [Hudson’s affairs with other employees], and [Hudson’s] been warned
before[] . . . .”5 Ogden threatened to quit should Hudson remain her supervisor, but
Klem urged her not to do so, and told her he would address her complaints to the
home office.


      When the two spoke a few days later, however, Klem told Ogden he had
been assured by Hudson that the matter was merely a personality conflict, which
had since been resolved. Ogden insisted this was not the case; rather, Hudson had
been “treating her like a dog” because she refused to go out with him. She also


      5
         Indeed, there was evidence that Klem and other members of Wax Works
upper management were aware of Hudson’s inappropriate behavior long before
Ogden complained in August, 1995. Klem admitted at trial that he had previously
warned Hudson to stop his inappropriate relationships with fellow employees, as
well 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 he
was aware she had problems with Hudson. Dale Taylor, a Wax Works vice
president, also admitted he had heard “rumblings” of Hudson’s inappropriate
relationships with other employees and conduct after working hours.



                                         -7-
described more of Hudson’s objectionable conduct, including his offers to stay at
her home. Klem ultimately agreed to travel to Sioux City to meet with all parties
involved. According to Ogden, however, his demeanor had “totally changed” from
their prior conversation; he “minimize[d] [Hudson’s conduct] just like nothing had
happened.”


      Klem visited Sioux City as promised August 21-24, 1995, but Ogden was
unable to meet with him due to illness.6 Klem interviewed several of Ogden’s
employees during his visit, but one of them, Shook, testified his questions focused
upon Ogden’s performance, rather than Hudson’s conduct.


      For her part, Ogden called Klem after he left Sioux City and offered to
discuss 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 as
an “asset” to the company and saw no reason to fire him. Ogden then asked
whether, 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. She
twice called the home office in an attempt to address her complaints to a vice
president prior to her departure, but her calls went unreturned.


       Ogden was physically and emotionally devastated by Hudson’s harassment
and the loss of her position. Her psychotherapist testified she suffered from



      6
        At trial, Ogden introduced phone records to indicate she called in four times
during Klem’s visit.

                                          -8-
posttraumatic stress disorder and major depression, and attributed these maladies to
Hudson’s abuse. After spending several months confined to her home, she
eventually secured two part-time jobs, one in sales, the other in light janitorial work,
at significantly reduced pay and responsibility. Hudson, meanwhile, received no
discipline for his behavior, and nothing about the incident was placed in his
personnel 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 an
employee handbook containing the following summary of its sexual harassment
policy:


        * Sexual Harassment

        Unwelcome sexual advances, request[s] for sexual favors and other
        verbal or physical conduct of a sexual nature constitutes sexual
        harassment. Sexual harassment exists if this type of conduct becomes
        a condition of an individual’s employment, or it is used as a basis for
        employment decision[s]. Also, sexual harassment constitutes conduct
        which interferes with an individual’s work performance or creates an
        intimidating work environment.

        Employees are encouraged to report any alleged violations of this
        policy immediately to a member of management or directly to the
        Director of Human Resources. All such complaints will be held in
        confidence and will be investigated thoroughly. Appropriate action
        will be taken.

Additionally, Wax Works posted signs in stores encouraging employees with

                                          -9-
grievances to call the home office toll-free. Ogden received no training with regard
to the sexual harassment policy, however, and Wax Works admittedly provided no
such training during her tenure.


      Hudson testified to his familiarity with the policy, and stated that he had
received “extensive training on sexual harassment issues” in conjunction with his
M.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.7 Douglas County Bank & Trust Co.
v. United Fin. Inc., 207 F.3d 473, 477 (8th Cir. 2000). “Because the law places a
high standard on overturning a jury verdict, JAML is proper only when there is a
complete absence of probative facts to support the conclusion reached so that no
reasonable juror could have found for the nonmoving party.” Blackmon v.
Pinkerton Sec. & Investigative Serv., 182 F.3d 629, 635 (8th Cir. 1999). Our review
is extremely deferential; to prevail on its motion for JAML, Wax Works faces the
difficult task of demonstrating all the evidence points in its direction and is


      7
          Ogden urges us to reject Wax Works’ request for JAML in toto due to its
failure to renew the motion at the close of all evidence. However, the record
reflects the district court took Wax Works’ original motion under advisement after
taking several witnesses out of order. As a result, only a short time elapsed between
the original motion and the close of evidence. We find it appropriate to reach the
merits under these circumstances. See BE&K Constr. Co. v. United Bhd. of
Carpenters and Joiners of America, AFL-CIO, 90 F.3d 1318, 1325 (8th Cir. 1996).

                                          -10-
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’s
quid pro quo8 and hostile environment9 sexual harassment claims. We disagree, and
we find these arguments merit little discussion. Ogden’s testimony supported the
jury’s conclusion that her submission to Hudson’s unwelcome advances was a
condition for receiving her 1995 raise, and her refusal to submit to his advances
resulted in the denial of the same. See Cram v. Lamson & Sessions Co., 49 F.3d
466, 473 (8th Cir. 1995). Moreover, the jury reasonably concluded the drumbeat of


      8
        To prevail on her quid pro quo claim, Ogden needed to prove (1) she was a
member of a protected class; (2) she was subjected to unwelcome harassment in the
form of sexual advances or requests for sexual favors; (3) the harassment was based
on sex; and (4) her submission to the unwelcome advances was an express or
implied condition for receiving job benefits or her refusal to submit resulted in a
tangible job detriment. Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir.
1995).
      9
         To prevail on her hostile environment claim, Ogden needed to prove (1)
she belonged to a protected group; (2) she was subjected to unwelcome
harassment; (3) the harassment was based on sex; and (4) the harassment affected a
term, 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, or
privilege of employment if it is “sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an objectively hostile or abusive
work 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 its
frequency; severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work
performance.” Id. (citing Harris, 510 U.S. at 23).

                                        -11-
physical advances, propositions, and mistreatment Ogden endured from Hudson for
more than a year was both unwelcome and offensive, and sufficiently severe or
pervasive to alter the conditions of Ogden’s employ and create an objectively hostile
or 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, 477
U.S. 57, 67 (1986)).


      Of course, in “supervisor harassment” cases such as this, the terms “quid pro
quo” and “hostile environment” remain relevant only to the extent they illustrate the
evidentiary distinction between cases involving threats which are carried out and
those featuring offensive conduct in general. Burlington Indus., Inc. v. Ellerth, 524
U.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 to
determine whether the employer may be held liable for the supervisor's conduct. In
Ellerth and Faragher, the Supreme Court established that under Title VII, employers
are vicariously liable for hostile environment sexual harassment perpetrated by a
supervisor. 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 an
affirmative defense consisting of two elements: (a) the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior,
and (b) the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise. Ellerth, 524 U.S. at 764-65; Faragher, 524 U.S. at 807-08.



                                         -12-
      Here, the district court instructed the jury to consider the defense with respect
to 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 the
defense at all. We agree with the district court. The Ellerth/Faragher rule is clear:
“No affirmative defense is available[] . . . [] when the supervisor’s harassment
culminates 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 was
reasonably rejected by the jury. There was substantial evidence indicating that Wax
Works neither conducted the “thorough investigation” nor took the “appropriate
action” promised by its sexual harassment policy, belying its claim to have exercised
reasonable care to “prevent and correct promptly . . . sexually harassing behavior.”
According to the testimony of Ogden and others, Wax Works “minimized” her
complaints; performed a cursory investigation which focused upon her performance,
rather than Hudson’s conduct; and forced her to resign while imposing no discipline
upon 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 harassing
employee relevant to an analysis of the employer’s response). Moreover, the jury
could have reasonably concluded Ogden took advantage of the “opportunities”
afforded by Wax Works and/or attempted to “avoid harm otherwise.” She
complained to a member of Wax Works management (Klem), arguably in




                                         -13-
accordance with the company’s sexual harassment policy,10 and on several
occasions directly told Hudson to stop his offensive conduct.


      Wax Works next argues Ogden’s retaliation claim11 must fail because she did
not engage in the “protected activity” requisite for this theory of liability. Ogden
maintains she engaged in “the most basic form of protected activity” when she told
her supervisor, Hudson, to stop his offensive conduct. See Quarles v. McDuffie
County, 949 F.Supp. 846, 853 (S.D. Ga. 1996). We agree with Ogden. Employers
may not retaliate against employees who “oppose discriminatory conduct,” see 42
U.S.C. § 2000e-3(a), and the jury reasonably concluded Ogden did so when she told
Hudson 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 that
Hudson’s denial of her raise was causally connected to her opposition.12 See Scusa
v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 968 (8th Cir. 1999).


      10
          Wax Works can scarcely argue that Ogden’s complaints failed to provide
notice of Hudson’s sexually harassing behavior. Indeed, Klem’s own notes
indicated Ogden told him Hudson (1) abused her; (2) yelled at her constantly; and
(3) withheld her raise.
      11
          To prevail on her retaliation claim, Ogden needed to prove (1) she filed a
charge of harassment or engaged in other protected activity; (2) Wax Works
subsequently took an adverse employment action against her; and (3) the adverse
action was causally linked to her protected activity. See Scusa v. Nestle U.S.A. Co.,
Inc., 181 F.3d 958, 968 (8th Cir. 1999).
      12
          Notwithstanding Wax Works’ arguments, the timing of Ogden’s prior
raises is of no moment, since, according to Ogden’s testimony, Klem ordered
Hudson to effectuate her 1995 raise in April of that year, and Hudson did not do so
at any time prior to Ogden’s departure from Wax Works in September, 1995.

                                         -14-
      Wax Works next argues there was insufficient evidence to support Ogden’s
constructive discharge.13 We disagree. The jury reasonably concluded Hudson’s
harassment rendered Ogden’s working conditions objectively intolerable; and, given
Ogden’s testimony that Klem told her she could no longer remain with the company
in the wake of her allegations, that Wax Works either intended to force Ogden to
resign or could have reasonably foreseen she would do so. See Kerns v. Capital
Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999). In addition, we have held if an
employee quits because she reasonably believes there is no chance for fair
treatment, 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. Rival
Co., 171 F.3d 1155, 1160 (8th Cir. 1999).14

      13
          To establish her constructive discharge, Ogden needed to show that a
reasonable person would have found the conditions of her employ intolerable and
that the employer either intended to force her to resign or could have reasonably
foreseen 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).
      14
         Wax Works also challenges “the evidence supporting the front pay
award,” and argues the award should have been capped by the district court
pursuant to 42 U.S.C. § 1981a. Wax Works has not briefed the issue beyond its
objections to the constructive discharge claim, however, and we deem any
objections not raised to be abandoned. See Fed. R. App. P. 28(a)(4); Kerns, 178
F.3d at 1018. In any event, the district court correctly ruled that front pay is an
equitable 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 the
amount. See Ogden v. Wax Works, Inc., 29 F.Supp.2d 1003 (N.D. Iowa 1998).


                                        -15-
      Wax Works next argues there was insufficient evidence to support the
punitive 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 the
parties were briefing this appeal.


      In Kolstad, the United States Supreme Court clarified “[t]he precise burden a
plaintiff 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 (10th
Cir. 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 an
aggrieved individual.’” Kolstad, 119 S. Ct. at 2121 (citing § 1981a(b)(1)). The
Kolstad Court rejected an interpretation which would have required “egregious”
conduct by an employer before punitive damages could be available under this
provision.15 Id. at 2124. Instead, the Court interpreted § 1981a(b)(1) to provide for
punitive 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 in
violation 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 must
at least discriminate in the face of a “perceived risk that its actions will violate
federal law” to be liable in punitive damages. Id. at 2125.


      15
         We had previously rejected such an interpretation in Kim v. Nash Finch
Co., 123 F.3d 1046, 1065 (8th Cir. 1997).


                                           -16-
      The Court made clear, however, that the punitive damages inquiry does
not end with a showing of the requisite malice or reckless indifference on the part of
certain individuals; the plaintiff must impute liability for punitive damages to the
employer. See Kolstad, 119 S. Ct. at 2126. For these purposes, the Court adopted
the 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 of
employment.’” Id. (citing Restatement (Second) of Agency, § 217C)). Allowing
that “no good definition of what constitutes a ‘managerial capacity’ has been
found[,]” the Court suggested a “factual inquiry” focusing upon “the type of
authority that the employer has given to the employee, [and] the amount of
discretion that the employee has in what is done and how it is accomplished.” Id. at
2128-29 (citing Restatement (Second) of Torts, § 909). The Court interpreted the
“scope of employment” requirement broadly: “[I]ntentional torts are within the
scope of an agent’s employment if the conduct is ‘the kind [the employee] is
employed to perform,’ ‘occurs substantially within the authorized time and space
limits,’ and ‘is actuated, at least in part, by a purpose to serve the’ employer. [S]o
long as these rules are satisfied, an employee may be said to act within the scope of
employment even if the employee engages in acts ‘specifically forbidden’ by the
employer and uses ‘forbidden means of accomplishing results.’” Id. (citing
Restatement (Second) of Agency, §§ 228, 230).


      “Recognizing Title VII as an effort to promote prevention as well as
remediation, and observing the . . . limits on vicarious liability for punitive
damages,” the Court created an exception to the Restatement rule whereby an

                                          -17-
employer may escape vicarious liability for the discriminatory employment decisions
of managerial agents where those decisions are contrary to the employer’s “good
faith efforts to comply with Title VII.” See Kolstad, 119 S. Ct. at 2129.     The
Court left to lower courts the determination of what measures constitute “good faith
efforts,” stating only that “Title VII is designed to encourage the creation of anti-
harassment policies and effective grievance mechanisms[,]” and “[t]he purposes
underlying Title VII are similarly advanced where employers are encouraged to
adopt anti-discrimination policies and to educate their personnel on Title VII’s
prohibitions.” Kolstad, 119 S. Ct. at 2129.


      Because Wax Works did not object to the punitive damages instruction in the
district court or on appeal, we apply Kolstad to the record before us, asking whether
a reasonable jury could find Wax Works liable for punitive damages.16 We hold


      16
           See, e.g., Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 436-37 (4th
Cir. 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’s
precise standards of intent and agency, or its good faith exception to vicarious
liability. But, as previously mentioned, Wax Works neither requested any such
instructions at trial nor challenges the instructions here; rather Wax Works contends
that Ogden’s failure to submit sufficient evidence to establish her punitive damages
claim entitles it to JAML on the issue. This presents a purely legal question to this
court on review, see Hyatt v. Robb, 114 F.3d 708, 711 (8th Cir. 1997), and requires
us to apply the law as it exists today, “not what the court announced the law to be in
its instructions.” Grand Lab., Inc. v. Midcon Labs of Iowa, 32 F.3d 1277, 1280 (8th
Cir. 1994). See Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97
(1993)(Supreme Court decisions apply retroactively and prospectively to all cases
on direct appeal whenever applied to the litigants before the Court). Thus, the
question becomes whether the present record contains sufficient evidence to “reveal

                                          -18-
there is substantial evidence from which a reasonable jury could find Wax Works
liable for punitive damages under the clarified standards of Kolstad.


      Concerning Hudson’s malice or recklessness, Wax Works can scarcely
dispute that, based on the record as discussed above, a reasonable jury could have
found Hudson’s behavior “sufficiently abusive” to manifest the requisite malice or
reckless disregard for Ogden’s rights.17 See Kimbrough v. Loma Linda Dev., Inc.,
183 F.3d 782, 785 (8th Cir. 1999). Moreover, Wax Works’ sexual harassment
policy forbade “[u]nwelcome sexual advances, request[s] for sexual favors and
other verbal or physical conduct of a sexual nature[,]” as well as “conduct which
interferes with an individual’s work performance or creates an intimidating work


whether a reasonable jury could have found” Wax Works liable for punitive
damages under the clarified standards of Kolstad. Todd v. Ortho Biotech, Inc., 175
F.3d 595, 598-99 (8th Cir. 1999) (citing Hill v. International Paper Co., 121 F.3d
168, 176-77 (5th Cir. 1997))(acknowledging this standard of review but remanding
where 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 would
not be denied by applying a different defense on appeal than that given to jury, if
evidence presented would not suffice, as matter of law, to support jury verdict under
properly formulated defense). We conclude the record contains ample evidence to
allow us to make this determination in this case.
      17
         Indeed, 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 Smith
v. Wade, that it could award punitive damages only upon a finding of reckless or
callous 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 decision
in Smith v. Wade.”).

                                         -19-
environment.” Hudson testified to his familiarity with the policy, and claimed he
received “extensive training on sexual harassment issues” in conjunction with his
M.B.A. A jury could therefore infer Hudson had knowledge of Title VII’s
proscriptions, and given this knowledge, reasonably conclude he acted in the face of
a perceived risk that his actions would violate federal law. See Alexander v. Fulton
County, 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 managerial
capacity and acted within the scope of his employ. Hudson undisputedly supervised
several stores, and possessed the authority to schedule and conduct performance
evaluations, and thereby to effectuate employee raises. These duties were the kind
he was employed to perform; his abusive conduct occurred for the most part during
working hours on Wax Works premises; and his conduct was “actuated in part to
serve Wax Works.” Lowery, 206 F.3d at 444-45; E.E.O.C., 187 F.3d at 1248. See
Kolstad, 119 S. Ct. 2128-29.


      Concerning its purported “good faith efforts to comply with Title VII,” Wax
Works points to its written sexual harassment policy, and policy of encouraging
employees with grievances to contact the home office. “Plainly, such evidence does
not suffice, as a matter of law,” to establish “good faith efforts” in the face of
substantial evidence that the company “minimized” Ogden’s complaints; performed
a cursory investigation which focused upon Ogden’s performance, rather than
Hudson’s conduct; and forced Ogden to resign while imposing no discipline upon

                                          -20-
Hudson for his behavior. Deffenbaugh-Williams, 188 F.3d at 286 (Wal-Mart’s
policy of encouraging employees to contact management with grievances did not
suffice to establish good faith efforts as a matter of law, in light of Wal-Mart’s
failure to respond effectively to plaintiff’s complaints).18
                                           IV.


      A motion for a new trial should only be granted if the jury’s verdict was
against 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 the
denial 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 that
the district court abused its discretion when it admitted into evidence a five-minute
videotape depicting the lewd activities which took place during a 1987 company
convention. Wax Works maintains the videotape incited the passion and prejudice
of the jury, as reflected in the verdict and damages awarded. We disagree. The
admission of evidence is committed to the sound discretion of the district court, and
we review these decisions only for a clear abuse of discretion. Id. Here, the district
court allowed the videotape into evidence during rebuttal after a Wax Works
witness disputed Ogden’s account of the 1987 convention, and subsequently
instructed the jury to consider Wax Works’ pre-1994 conduct only as “relevant


      18
        See 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 (8th
Cir.1999)).

                                          -21-
background evidence,” and not for purposes of awarding damages. Under these
circumstances, we hold the district court did not abuse its discretion. Moreover, a
new trial is not warranted on the basis of an evidentiary ruling unless the evidence
was so prejudicial that a new trial would likely produce a different result. Id. The
videotape was not so prejudicial, in light of the substantial evidence presented by
Ogden in support of her case.


      We further find, for the reasons set forth above, that the jury’s verdict was
not against the weight of the evidence. See id. (“A district court’s determination
that 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 punitive
damages award was excessive. The district court reduced the award to $260,000.00
pursuant to § 1981a(b)(3)(D), reducing the ratio to compensatory damages to 6.5 to
1. “We do not think this amount is excessive as a matter of law, given the abusive
and 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 to
compensatory damages).


      Affirmed.




                                          -22-
A true copy.


      Attest:


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




                              -23-
