                                ___________

                                No. 96-3470
                                ___________

Suzanne Harris,                   *
                                  *
                       Appellant, *        Appeal from the United
                                       *         States District Court for
           v.                          *         the Eastern District of
                                       *         Missouri.
Secretary, United States           *
Department of the Army,                *
                                       *
                       Appellee.       *

                                ___________

                           Submitted: May 19, 1997

                            Filed: July 14, 1997
                                 ___________

Before BEAM and LOKEN, Circuit Judges, and KYLE, District Judge.1


KYLE, District Judge


     Suzanne Harris ("Harris") appeals the district court’s2
decision to grant the Secretary of the United States Department
of the Army ("the Secretary") a new trial on Harris’ Title VII
claim for retaliation, after a jury returned a verdict in her
favor.   Harris further appeals the district court’s order of
judgment in favor of the Secretary on her Title VII claim of sex
discrimination for failure to promote.          Finally, she appeals the
district court’s evidentiary rulings during the second trial on




     1
          The Honorable Richard H. Kyle, United States District
Judge for the District of Minnesota, sitting by designation.
     2
           The Honorable Charles A. Shaw, United States District
Judge for the Eastern District of Missouri.

                                       1
her retaliation claim.    We affirm.


I.   Background


     Harris began working for the St. Louis District, United
States Army Corps of Engineers (the "District"), as a GS-9
archeologist in the Environmental Analysis Branch of the Planning
Division (the "Branch").    In 1987, she was non-competitively3
promoted to a GS-11 archeologist.      Harris’ claims center around
the District’s failure to non-competitively promote her to a GS-
12 archeologist and its subsequent treatment of her after she
complained about not receiving this promotion.


     Federal service jobs are classified on a "general schedule"
("GS") scale, and a federal employee’s pay is based upon her GS
level.    The federal government utilizes the same standards for
classifying federal employees nationwide; the difference in
levels is a function of the complexity and nature of the
employee’s work.    A GS-11 archeologist is a full performance,
journeyman archeologist, while a GS-12 archeologist performs
senior, complex work.
     Two male archeologists worked in the Branch, Terry Norris
("Norris") and Dr. Michael Trimble ("Trimble").     Norris began
working for the Branch in 1977, and he was promoted to GS-12 in
1982.    Trimble began working for the Branch under an




     3
          A non-competitive promotion occurs when an employee
requests that her job be reclassified to a higher level because
the employee believes she is performing the work of a higher
level position and should be compensated for it. It is non-
competitive because a vacant position does not open up for which
several candidates compete.

                                  2
Intergovernmental Personnel Agreement,4 and in April of 1991, the




     4
          An Intergovernmental Personnel Agreement is a
contractual arrangement in which a person with special expertise
works "on loan" from a state agency or educational institution.

                                3
Branch hired him as a full-time, GS-11 archeologist.   During his
work for the Branch, Trimble became an expert in curation,
oversaw the District’s curation work, and authored the Army Corps
of Engineers’ regulations on curation.


     In June 1991, Harris spoke with her supervisor, Daniel
Ragland ("Ragland"), about obtaining a non-competitive promotion
to a GS-12 position.   Ragland agreed to assist her in obtaining
this promotion. For civilian employees like Harris, a supervisor
only recommends the employee for a non-competitive promotion.
The Position Management and Classification Branch
("Classification Branch") ultimately determines whether a non-
competitive promotion is warranted.


     Ragland attempted to obtain non-competitive promotions for
both Harris and Trimble.   He submitted Trimble’s application in
1991.   The Classification Branch denied it because Trimble did
not meet the requirement of being employed at the GS-11 level for
at least one year.   On February 21, 1992, Ragland submitted
Harris’ application for a non-competitive promotion. Owen Dutt
("Dutt"), the Chief of the Planning Division, denied Harris’
application because a reduction-in-force ("RIF") was in place in
the District, and it was considered inappropriate to promote
employees during a RIF.


     In April 1992, Ragland resubmitted both Harris and Trimble’s
applications for a promotion to GS-12 based on a generic job
description he had created from Norris’ existing job duties.    On
June 1, 1992, the Classification Branch denied both promotions,
indicating that the Branch would have to justify the grade
increases based on the workload and complexity of Trimble and
Harris’ duties, as opposed to their expertise, membership in


                                 4
professional societies, and job histories.    It also recommended
that Ragland resubmit both Harris and Trimble’s applications for
promotions after the Classification Branch performed desk audits
to determine the exact nature of their jobs.


     After the Classification Branch denied her promotion, Harris
met with her second-in-line supervisor, Major Marszalek
("Marszalek") to ask for his support in obtaining a promotion.
Marszalek told Harris he would not support her in this endeavor
because he did not think her education or experience justified a
promotion.


     On Friday July 10, 1992, Marszalek instructed Ragland to
have Harris work overtime during the upcoming weekend.    Harris
objected based upon the short notice and because she had personal
obligations over the weekend.    Ragland informed Harris that if
she did not work, Marszalek would consider her to be
insubordinate and fire her.    He also told her another male
archeologist would be expected to work that weekend.    Harris,
however, was the only archeologist who worked during this
weekend.


     On July 13, 1992, following the overtime incident, Harris
filed a charge of discrimination with the Army Corps of
Engineers’ EEO officer, alleging she had been denied a promotion
because of her sex.


      Trimble received his non-competitive promotion to GS-12 on
September 5, 1992.    His promotion occurred under a federal
classification standard entitled "impact of person on the job."
Because of Trimble’s curation work, the Army Corps of Engineers
designated the District as its nationwide Technical Center on


                                  5
Expertise for curation, and the Branch formed a new section to
oversee the curation program.   Trimble obtained his promotion




                                 6
without a desk audit because the Classification Branch does not
require a desk audit when a non-competitive promotion is based
upon this standard and the employee’s increased and complex job
duties are evidenced.   On October 13, 1992, Harris filed her
second EEO complaint, alleging discrimination based upon sex and
retaliation.


     During 1993, people within the Branch continued in their
attempts to obtain a non-competitive promotion for Harris.      Dutt
added to Harris’ duties, hoping that this would lead to a
promotion.     In February of 1993, the Classification Branch
determined that a desk audit should be conducted on Harris.
Barbara Scott ("Scott"), a classification specialist who had
worked on neither Harris’ nor Trimble’s previous promotion
requests, conducted the desk audit.   Harris objected to the audit
because male employees were not audited before receiving non-
competitive promotions.   In addition, Harris felt that the
results of the audit would not be favorable because Marszalek had
taken projects from her that would justify her promotion.5      Scott
determined that Harris was performing GS-11 duties, based upon
the level and complexity of her work, and thus, she did not
recommend a promotion for Harris.


     After filing her second complaint of discrimination, Harris

     5
           Harris claims that Marszalek took the following job
responsibilities from her: 1) budgeting responsibilities and 2)
the Whappalello programmatic agreement. Ragland testified that
Marszalek took budgeting responsibilities away from all Branch
employees in 1993 in order to complete the fiscal year 1994
budget himself. Ragland further testified that Marszalek
reassigned the Whappalello project to another Branch employee
because Harris had been working on it for more than one year, but
had not completed it. This employee finished drafting the
agreement in a few weeks, and then Marszalek returned the project
to Harris.

                                  7
received lower performance evaluations.   In January of 1993,




                                8
Harris’ evaluation was lowered from an "exceptional" to a "highly
satisfactory" rating.6    Before January of 1993, management in the
District was concerned that performance ratings throughout the
District were inflated.    Dutt sent an e-mail message to all
employees in the District, including Harris, informing them that
the District needed to give more realistic ratings.       Ragland had
wanted to lower Harris’ 1993 performance evaluation to "fully
satisfactory" because of concerns he had about her completing
work in a timely fashion.    Dutt, however, would only support a
lowering of one level, and thus, Harris received the "highly
successful" rating.   In 1993, Ragland also lowered the ratings of
two male employees from "exceptional" to "highly satisfactory."
     Harris’ Title VII claims for sex discrimination and
retaliation were tried in 1995.       The retaliation claim was
submitted to the jury, and the sex discrimination claim was also
submitted to the jury , but for an advisory opinion only.         On
June 23, 1995, the jury rendered a verdict in favor of Harris on
both counts.   The district court directed the parties to submit
proposed findings of fact and conclusions of law, as well as any
post-trial motions by July 17, 1995.       On July 17, 1995, the
Secretary moved for Judgment as a Matter of Law, Judgment
Notwithstanding the Verdict, or in the alternative, for a New
Trial on the retaliation claim.       On August 9, 1995, the district
court entered partial judgment for Harris on the retaliation
claim, and on August 23, 1995, the Secretary moved to alter or
amend the judgment.   Rejecting the jury’s advisory verdict, the
district court, on October 23, 1995, made findings in favor of
the Secretary and directed the entry of judgment in favor of the


     6
            Civilian employees’ performances were rated based on
five categories: 1) unsatisfactory; 2) needs improvement; 3)
fully satisfactory; 4) highly satisfactory; and 5) exceptional.
In 1990, Harris received a "highly satisfactory" rating. In 1991
and 1992, she received an "exceptional" rating.

                                  9
Secretary on the sex discrimination claim; the district court




                               10
also granted the Secretary’s Motion for a New Trial on the
retaliation claim.    In August of 1996, the district court
conducted a new trial on the retaliation claim.    This time, the
jury returned a verdict in favor of the Secretary.    This appeal
followed.


II.   Discussion


      Harris advances four arguments on appeal: (1) the district
court improperly granted the Secretary a new trial on the
retaliation claim; (2) granting a new trial was inappropriate
because it was inconsistent with the policies underlying the
Federal Rules of Civil Procedure governing the granting of new
trials; (3) the district court erred in rejecting the jury’s
advisory verdict on her sex discrimination claim; and (4) the
district court improperly excluded probative evidence of
discrimination during the second trial.


      A.   Grant of the Secretary’s Motion for a New Trial


      A district court may grant a new trial on the basis that the
verdict is against the weight of the evidence, if failing to do
so would result in a miscarriage of justice.    Shaffer v. Wilkes,
65 F.3d 115, 117 (8th Cir. 1995) (quoting White v. Pence, 961
F.2d 776, 780 (8th Cir. 1992)).    "In determining whether a
verdict is against the weight of the evidence, the trial court
can rely on its own reading of the evidence - it can ‘weigh the
evidence, disbelieve witnesses, and grant a new trial even where
there is substantial evidence to sustain the verdict’."       White,
961 F.2d at 780 (quoting Ryan v. McDonough Power Equip., 734 F.2d
385, 387 (8th Cir. 1984)).    The district court, however, may not
"reweigh the evidence and set aside the jury verdict merely


                                  11
because the jury could have drawn different inferences or
conclusions or because judges feel that other results are more




                               12
reasonable."   Id. (quotations omitted).


     In ruling on a motion for a new trial, the district court
must articulate its reasons for finding the verdict is against
the weight of the evidence. Shaffer, 65 F.3d at 118. This Court
accords great deference to the district court’s decision to grant
a new trial. Id. We will reverse this decision only upon a
showing of an abuse of discretion.     Id.


     The district court found the jury’s verdict was against the
weight of the evidence.    In so ruling, it properly articulated
the legal standard upon which to evaluate Harris’    retaliation
claim.   To establish a prima facie case of retaliation, Harris
needed to show: 1) she complained of discrimination; 2) the
District took adverse employment action against her; and 3) the
adverse action was causally related to her complaint.    See Smith
v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997).     Once
Harris made her prima facie showing, the burden of production
shifted to the Secretary to articulate a legitimate,
nondiscriminatory reason for its actions.    Jackson v. Delta
Special Sch. Dist. No. 2, 86 F.3d 1489, 1494 (8th Cir. 1996).       If
the Secretary met this burden, the fact finder was left to
determine if Harris presented evidence capable of proving that
the District’s proffered reasons for termination were a pretext
for illegal retaliation.    Id.


     Harris argues that the district court made several errors of
law and usurped the jury’s function of weighing evidence and
determining the credibility of witnesses.


     First, Harris contends that the district court erred when it
characterized the "overtime incident" as one of her alleged acts


                                  13
of reprisal because she never argued that it was an act of




                               14
retaliation.7   We disagree.   As Harris acknowledges, the district
court properly determined that the "overtime incident" could not
be an act of retaliation because it occurred before she
complained about discrimination.       Even if Harris did not argue
this was evidence of retaliation, the fact that the district
court referred to it in its analysis of the Secretary’s motion
for a new trial does not demonstrate that the court abused its
discretion in granting a new trial.       Harris neither maintains
that the district court would have ruled differently on the
motion had it not been for this incident, nor does she explain
why this reference constitutes anything more than harmless error.
Accordingly, we find that the district court did not abuse its
discretion in granting a new trial because it mentioned the
"overtime incident" in its ruling on the motion.


     Second, Harris argues that the district court improperly
determined that her performance evaluation of "highly
satisfactory" in 1993 could not constitute an adverse employment
action. Any lowering in an employee’s rating, Harris contends, is
an adverse action if it actually did impair, or has the potential
of impairing, the plaintiff in employment situations.       The
Secretary responds that only negative or low performance
evaluations constitute adverse employment ratings.
     We need not determine if any lowering in an employee’s
performance evaluation can constitute an adverse employment
action under Title VII.   In the instant case, the district court
noted the Secretary presented uncontradicted evidence at trial
explaining why Harris received the lower rating: the District


     7
          The "overtime incident" occurred the weekend before
Harris first complained of discrimination in 1992. Because
Harris was asked to work overtime before she complained about
discrimination, the district court found this could not be
considered an act of retaliation.

                                  15
management intended to lower inflated performance reviews in the




                               16
entire District in 1993; Harris was aware of this; and male
employees had their evaluations lowered in a similar manner.
Thus, the district court concluded that Harris had presented no
evidence establishing that the Secretary’s proffered explanation
for her lowered rating was a pretext for illegal retaliation.


     Harris points to no evidence indicating that the Secretary’s
explanation is unworthy of credence and that it is a pretext for
illegal retaliation.   Because Harris has failed to show why the
district court’s determination on this issue was erroneous, we
will not disturb its findings regarding her lower performance
review.


     Finally, Harris argues that the district court erred when it
determined the desk audit was not an incident of illegal
retaliation because it was used to help her receive a promotion,
and not to prevent her from being promoted.   Harris alleges that
the following evidence at trial revealed that the Branch used the
desk audit to deny her a promotion: 1) Dutt testified that a
supervisor could prevent an employee from being promoted by
controlling assignments; 2) Ragland testified that Marszalek
changed Harris’ assignments; and 3) Jack Rasmussen, Harris’
former supervisor, testified about the negative impact of not
receiving GS-12 assignments.


     The Court disagrees that the evidence at trial demonstrated
the Branch used the desk audit as a way to prevent Harris from
receiving a promotion.   Instead, the evidence at trial revealed
that the Classification Branch recommended to the Branch that a
desk audit be conducted on Harris after her promotion was denied
in June of 1992, before she ever complained of discrimination.
Additionally, we do not believe that Harris’ alleged evidence


                                17
about the true reasons for the desk audits supports a reasonable
inference that the Branch audited Harris in order to deny her a




                               18
promotion.   While Harris may have been aware that a desk audit
would reveal she was not performing GS-12 work, the district
court was not required to believe her contention that the audit
must have been performed to thwart her from receiving a
promotion.   See White, 961 F.2d at 781 (noting that district
court, in determining whether to grant a new trial, is free to
weigh and reject evidence because it finds it lacking in
credibility or plausibility). Thus, we conclude that Harris has
failed to prove that the district court abused its discretion
when it granted a new trial on her retaliation claim.


     B.   Time in which the District Court Allowed the Parties
     to Make Post-Trial Motions


     On June 23, 1995, the jury returned a verdict in favor of
Harris on her retaliation claim;       the clerk’s office docketed
this verdict on June 26, 1995.    The district court, however, did
not direct judgment to be entered on the retaliation claim until
August 9, 1995.    Harris argues that the district court’s delay in
entering judgment on the retaliation claim improperly extended
the time in which the Secretary could file a motion for a new
trial.


     Rule 6(b) of the Federal Rules of Civil Procedure prohibits
the enlargement of the ten (10) day period for filing motions for
both judgment as a matter of law and a new trial.       See Fed. R.
Civ. Pro. 6(b), 50(b), 59(b).    In the instant case, the district
court gave the parties until July 17, 1995, to file post-trial
motions, including motions for a new trial and judgment as a
matter of law.    This is more than ten (10) days after the jury
returned its verdict in favor of Harris on her retaliation claim.
Harris asks this Court to rule that the district court’s delay in


                                  19
entering judgment created an impermissible extension of time in
which the Secretary was allowed to file his motion for a new




                               20
trial.


      We refuse to adopt Harris’ suggested rule of law.     According
to Rule 58 of the Federal Rules of Civil Procedure,"upon a
special verdict, . . . the court shall promptly approve the form
of the judgment, and the clerk shall thereupon enter it."      Fed.
R. Civ. P. 58.     Rule 54(b) limits the provisions of Rule 58,
stating:
           when more than one claim for relief is presented
           in an action . . . , the court may direct the
           entry of a final judgment as to one or more but
           fewer than all of the claims or parties only upon
           an express determination that there is no just
           reason for delay and upon an express direction
           for entry of judgment.

Fed. R. Civ. P. 54(b); see also Fed. R. Civ. P. 58.      Harris had
two claims, only one of which the jury resolved.      Thus, Rule
54(b) applied to the jury’s verdict.     We believe it is up to the
sound discretion of the district court to determine when it
should direct that a final judgment be entered under Rule 54(b).
Harris has presented no evidence that the district court had an
improper motive in waiting until August 9, 1995, to enter
judgment on the retaliation claim.     Under these circumstances,
this Court finds that the Secretary’s Motion for a new trial was
timely.


      C.   Rejection of the Advisory Jury’s Verdict


      When a district court submits a claim to an advisory jury,
the court is free to accept or reject the jury’s advisory verdict
in making its own findings.     See Gragg v. City of Omaha, 20 F.3d
357, 358-59 (8th Cir. 1994).     This Court "reviews the district
court’s findings for clear error as if there had been no jury."
Id.

                                  21
Harris contends that the district court erred when it ruled




                          22
she was not qualified for a non-competitive promotion to a GS-12
archeologist position.   She alleges that the Secretary conceded
she was qualified, a fact which the Secretary denies.


     Because she has no direct evidence of discrimination,
Harris’ sex discrimination claim is governed by the burden
shifting analysis first articulated in McDonnell-Douglas Corp. v.
Green, 411 U.S. 792, 802-804, 93 S. Ct. 1817, 1824-25 (1973).
Under this analysis, Harris first needed to establish a prima
facie case of discrimination. Ryther v. KARE 11, 108 F.3d 832,
836 (8th Cir. 1997) (en banc), cert. denied 65 USLW 3694.      In
order to establish a prima facie case for failure to receive a
non-competitive promotion, Harris had to demonstrate: 1) she was
a member of a protected class; 2) she applied and was generally
qualified for the up-grade; 3) she did not receive the job; and
4) similarly situated males received non-competitive promotions.
See Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996);
Epstein v. Secretary, United States Dep’t of the Treasury, 739
F.2d 274, 278 (7th Cir. 1984).


     Harris did not identify anything in the record evidencing
that she was qualified for an upgrade because she was performing
the duties of a GS-12 archeologist.   Harris’ only argument
regarding her qualifications, that the Secretary conceded she was
qualified, is incorrect.8   The Secretary did not admit that
Harris performed GS-12 duties; instead, he argued she was denied


     8
           The Secretary did concede that Harris was "qualified"
to compete for a vacant GS-12 archeologist position, if any
became available. Because her claim dealt with the denial of a
non-competitive promotion, the Secretary argued "the issue is not
one of the qualifications of the individuals but the job duties
of the positions; i.e. whether the position grades out at GS-11
or GS-12." (Appellee’s Answer to Appellant’s Interrog. No. 4;
Appellee’s Trial Br. at 7-8.)

                                 23
this promotion because her job duties were those of a GS-11




                               24
archeologist.   The district court properly determined that Harris
was not qualified to be reclassified to a GS-12 position, and as
a result, she failed to prove she was discriminated against.    We
conclude, therefore, that the district court did not commit clear
error in rejecting the advisory jury’s conclusion and finding
that the Secretary did not discriminate against Harris on the
basis of her sex.9


     D.   Evidentiary Rulings


     Harris contends that during the second trial, the district
court improperly excluded evidence "about the initial
discrimination" and refused to admit "any evidence of [Major
Marszalek’s] hostility toward women . . . ."   (Appellant’s Br. at
41-42.)   The Secretary responds that the trial court did not, in
a blanket fashion, refuse to admit any testimony about sex
discrimination from the first trial.   In addition, the Secretary
argues that the trial court properly limited highly prejudicial
and irrelevant testimony of two witness about Marszalek’s
attitude toward women.


     A district court has wide discretion in ruling on the
admissibility of proffered evidence, and we review the district
court’s ruling on evidentiary issues for an abuse of discretion.
See Gillming v. Simmons Indus., 91 F.3d 1168, 1172 (8th Cir.
1996); Callanan v. Runyun, 75 F.3d 1293, 1297 (8th Cir. 1996)
(noting district court is entitled to substantial deference in


     9
            Because of our determination of this issue, we need
not address Harris’ other claims regarding why the district court
erred in rejecting the advisory jury’s opinion. We also need not
address her arguments regarding evidentiary errors in the first
trial because none of these alleged errors affected evidence that
would have established she was performing GS-12 duties.

                                25
determining whether evidence should be excluded under Federal
Rules of Evidence 402 & 403).   Previously, we have cautioned




                                26
against the use of blanket evidentiary exclusions in
discrimination cases, noting that "a plaintiff’s ability to prove
discrimination indirectly, circumstantially, must not be crippled
by evidentiary rulings that keep out probative evidence because
of crabbed notions of relevance . . . ."        Id. (quoting Estes v.
Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988).
"Because an employer’s past discriminatory policy and practice
may well illustrate that the employer’s asserted reasons for
disparate treatment are a pretext for intentional discrimination,
this evidence should normally be freely admitted at trial."
Hawkins v. Hennepin Technical Ctr., 900 F.2d 153, 155-56 (8th
Cir. 1990)(holding plaintiff in a retaliation claim is allowed to
offer evidence about sexual harassment that preceded her
complaint and subsequent retaliation). Such evidence, however,
"must assist in the development of a reasonable inference of
discrimination within the context of each case’s respective
facts."        Callanan, 75 F.3d at 1297, (quoting Bradford v. Norfolk
S. Corp., 54 F.3d 1412, 1419 (8th Cir. 1995)).


       We find that the district court did not refuse to admit all
evidence about the "initial discrimination."10       The portions of
the second trial transcript to which Harris refers deal with the
limited issue of whether Harris’ written complaints of
discrimination should be admitted.        (See Second Trial Tr. at 1-
10.)        Harris argued to the district court that the sole purpose
of these documents was to prove the first element of retaliation


       10
           We also note the unique factual circumstances of this
case. The district court had already determined that the
District did not discriminate against Harris when it did not
promote her. Thus, a finding that no "initial discrimination"
occurred already existed when the second trial on the retaliation
claim began. To allow Harris to offer evidence about this
"initial discrimination" would have impermissibly reopened an
issue that was already decided against her.

                                     27
- she complained about discrimination.   (Id. at 5.)   The trial




                               28
court ruled that because Harris would be allowed to testify about
filing her charges of discrimination, the actual documentation
need not be admitted.   (Id. at 8.)    In addition, Harris’ written
complaint of retaliation was received into evidence.    (Id.)    We
do not believe that the district court "clearly abused its
discretion" in making this ruling.


     The district court also limited the testimony of two
witnesses regarding Marszalek’s attitude toward women.    The Court
did not allow Phillis Murphy to testify that she overheard
Marszalek say he thought women should be pregnant all the time
and at home.   (Second Trial Tr. at 2-6-2-8.)   The district court
ruled that while this evidence was probative of the sex
discrimination claim that was decided in the previous trial, it
was more prejudicial than probative in a case of retaliation.
(Id.)   The district court also refused to allow Norma Hall to
testify that Marszalek told her "the EEO is just bullshit, it’s
just for women."   (Id. at 2-13.)    Norma Hall, however, did
testify that Marszalek told her he was angry because a
discrimination complaint had been filed against him.    (Id.)


     We believe that the district court did not abuse its
discretion in not allowing this specific testimony.     See
Callanan, 75 F.3d at 1298 (noting district court did not abuse
discretion in limiting some testimony about the defendant’s other
acts of discrimination "perhaps most importantly" because the
evidentiary ruling was not a blanket, pretrial exclusion).
Because Harris had already tried and lost her sex discrimination
claim for failure to promote, the district court was properly
concerned that the issue of sex discrimination not be relitigated
in her second trial on the retaliation claim.    The district court
allowed Harris to offer probative evidence of retaliation, that


                                29
Marszalek was angry and hostile over her charge of discrimination
against him.   In this context, it was within the discretion of




                                30
the district court to determine that the prejudicial effect of
evidence displaying Marszalek’s general animus toward women
outweighed its probative value.


     Affirmed.


A true copy.


     Attest:


          Clerk, U.S. Court of Appeals, Eighth Circuit.




                                  31
