                         United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    _____________

                                     No. 97-3029
                                    _____________

Nancy Peery Bales,                     *
                                       *
            Plaintiff - Appellee,      *
                                       *
      v.                               *
                                       * Appeals from the United States
Wal-Mart Stores, Inc.,                 * District Court for the
                                       * Southern District of Iowa.
            Defendant - Appellant.     *
                                       *
Robert Lee Vallejo, Supervisor,        *
                                       *
            Defendant.                 *
                                  ___________

                                     No. 97-3030
                                     ___________

Nancy Peery Bales,                       *
                                         *
            Plaintiff - Appellee,        *
                                         *
      v.                                 *
                                         *
Wal-Mart Stores, Inc.,                   *
                                         *
            Defendant,                   *
                                         *
Robert Lee Vallejo, Supervisor,          *
                                         *
            Defendant - Appellant.       *
                                    ___________

                                    No. 97-3032
                                    ___________

Nancy Peery Bales,                       *
                                         *
            Plaintiff - Appellant,       *
                                         *
      v.                                 *
                                         *
Wal-Mart Stores, Inc.; Robert Lee        *
Vallejo, Supervisor,                     *
                                         *
            Defendants - Appellees.      *
                                   _____________

                                 Submitted: March 11, 1998
                                     Filed: May 7, 1998
                                  _____________

Before McMILLIAN, FAGG, and BOWMAN,1 Circuit Judges.
                           _____________

BOWMAN, Circuit Judge.

       Robert Lee Vallejo and Wal-Mart Stores, Inc., appeal from the judgment of the
District Court2 entered on a jury verdict in favor of Nancy Peery Bales on her claim of
sexual harassment. Bales cross appeals. We affirm.


      1
       The Honorable Pasco M. Bowman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 18, 1998.
      2
        The Honorable Celeste F. Bremer, Chief United States Magistrate Judge for the
Southern District of Iowa, who conducted the proceedings with the consent of the
parties pursuant to 28 U.S.C. § 636(c) (1994).

                                          -2-
      Bales worked as a clerk in the pharmacy department of the Wal-Mart store in
Boone, Iowa, from January 1994 until April 1995. Vallejo was the pharmacist at the
store during that time. After filing the requisite complaints with state and federal
agencies and receiving notice of her right to sue, Bales filed a complaint in federal court
in December 1995 claiming that she was subjected to both quid pro quo and hostile
work environment sexual harassment because of Vallejo's behavior, and that she was
constructively discharged. She made her claims under Title VII, see 42 U.S.C.
§§ 2000e to 2000e-17 (1994 & Supp. I 1995), and the Iowa Civil Rights Act (ICRA),
see Iowa Code Ann. §§ 216.1-.18 (West 1994 & Supp. 1998).

       After a four-day trial, the case was submitted to a jury. The jury returned
verdicts in favor of the defendants on Bales's claims of quid pro quo sexual harassment
and constructive discharge. The jury found in favor of Bales on her claim of hostile
work environment sexual harassment and awarded her actual damages of $28,000
against Vallejo individually for past emotional distress and nominal damages of $1
against Wal-Mart. No punitive damages were awarded.

       In ruling on post-trial motions, the District Court granted Vallejo's motion for
judgment as a matter of law (JAML) as to the judgment entered against him in his
individual capacity. See Bales v. Wal-Mart Stores, Inc., 972 F. Supp. 483, 488, 489
(S.D. Iowa 1997). The court ruled that Vallejo could be liable only in his capacity as
an employee of Wal-Mart, so the responsibility to pay Bales $28,000 in money
damages was shifted from Vallejo to Wal-Mart.3

      Wal-Mart appeals, challenging the sufficiency of the evidence of a hostile work
environment and contending that the court erred in determining that Wal-Mart should


      3
       The court also awarded attorney fees and costs to Bales. None of the parties
challenges those awards (except to the extent that they would be reversible if the case
were to be reversed on the merits).

                                           -3-
be liable for the damages the jury originally assessed against Vallejo in his individual
capacity. Vallejo also raises sufficiency questions. For her argument on cross appeal,
Bales claims "[t]he district court improperly dismissed the Plaintiff's claim against
Defendant Vallejo in his individual capacity under" ICRA. Brief of Bales at 47.

                                           I.

      We first address the questions raised by Vallejo and Wal-Mart as to whether the
evidence was sufficient to sustain a finding of hostile work environment. There are five
elements that Bales was required to prove to prevail on her claim: that she was a
member of a protected group, that she was subjected to unwelcome harassment in the
workplace, that the harassment was based on sex, that the harassment affected a "term,
condition, or privilege of employment," and that Wal-Mart "knew or should have
known of the harassment and failed to take proper remedial action." Todd v. Ortho
Biotech, Inc., ___ F.3d ___, ___, Nos. 97-1126, 97-1220, 1998 WL 92207, at *2 (8th
Cir. Mar. 5, 1998). We view the evidence in the light most favorable to Bales, and we
must affirm the judgment if a reasonable jury could have found that Bales was
subjected to conduct that constituted a hostile work environment under the applicable
law. See Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir. 1997).

       When Bales went to work in the pharmacy department of the Boone, Iowa, Wal-
Mart store, she was single and twenty-two years old. Vallejo was at least twenty years
her senior. At that time, Bales had a boyfriend, later fiancé, with whom she was living.
Nancy Bales nee Peery married Gary Bales in June 1995, after she had left the
pharmacy department. We mention this relationship because it is the focus of some of
the conduct of which Bales complains. Among the earliest of the incidents that Bales
recalled was Vallejo's comment to her, upon seeing a photograph of her boyfriend, that
he "wasn't good enough" for her. Transcript vol. I at 29. The Baleses' relationship was
stormy at times, and Vallejo took an inappropriate interest, for whatever reason, in the
couple's conflicts. Around Labor Day 1994, Bales called the store on a Monday and

                                          -4-
said she was sick and would not be in to work. She called in sick again the next day,
and when Vallejo found out, he called her at home. Bales told him she was not sick but
that she was unable to come to work for personal reasons. When Vallejo insisted on
knowing what those reasons were, she hung up the telephone. He called back several
more times, and during one of those calls threatened to fire her if she did not tell him
what the personal problem was. She indicated that he should fire her, because she did
not wish to discuss the problem with him or with anyone else, and hung up the
telephone again. He called back once more, and eventually she did tell him that she
had a fight with her boyfriend over his infidelity with a prostitute some months before,
about which she had just learned. Only after Bales told Vallejo the details of this very
personal dispute did he stop pestering her. As a result of another argument, Bales at
one time moved out of the home she shared with Gary and went to stay at a motel. The
next morning at work she was visibly upset. When Vallejo asked why, she told him
she and Gary had fought and that she had moved to a motel. Vallejo responded that
this might be a good time for him to leave his wife, and he would probably see her at
the motel. This was not the only time he told Bales about his unhappiness with his wife
and his desire to leave her. He also told her "about [his] affairs with other people." Id.
vol. I at 36.

       On occasion Bales would hear Vallejo talking aloud, and when she asked him
about it he told her he was having conversations with her "in his head." Id. vol. I at 34.
He called her at home and told her he was having "Nancy withdrawals." Id. vol. III-A
at 345. Vallejo told Bales that he had a dream about her in a sexy red dress, and asked
her if she owned one, and on another occasion told her that he had dreamed about her
in a blue swimsuit. He also reported to Bales that he had dreamed that he had engaged
in sexual relations with another female pharmacy clerk. If Bales did not allow herself
to be drawn into personal banter with Vallejo, she found that he took away the job
duties that she enjoyed most. Vallejo called Bales, and all of his employees (who at the
time were all female), "hon" or "honey" or "dear." He also called Bales "Nancy Hart,"
the name of the person he described as "his one true love, the person that he should

                                           -5-
have married," and told Bales she reminded him of Nancy Hart. Id. vol. I at 48.
Vallejo regularly annoyed Bales by doing such things as pulling her hair and twisting
or tugging at her smock.

        In the summer or fall of 1994, there was an incident in the pharmacy involving
a demonstration of the proper way to use an inhaler. A co-worker was showing Bales,
in Vallejo's presence, how to use the device, and Vallejo made comments about the
activity and what he thought was its similarity to oral sex, with references to blowing
or sucking. At another time, Vallejo sent Bales into the store to get a red marker off
the shelf, as he had lost the one he was using in his work. She brought back "a pretty
good-sized red marker" and he laughed and told her "that it looked like a big red
penis." Id. vol. I at 33. On a different occasion, Bales was slated to make an
announcement over the store's public address system concerning an in-store promotion
on a six-pack of a diet drink. Unbeknownst to Bales until she was reading the script
over the store's speaker system, Vallejo had edited the text, changing "six" to "sex."
It became his practice during Bales's months working in the pharmacy department "to
jump on certain words," giving them sexual connotation where none was intended. Id.
vol. I at 29. On Bales's birthday in January 1995, she received from Vallejo a birthday
card that she and others believed to be sexually suggestive. The card was signed only
by Vallejo, notwithstanding the tradition in the pharmacy department of giving group
birthday cards signed by all pharmacy employees.

       The last harassing event before Bales left the pharmacy department occurred in
April 1995. Earlier that spring, Bales had photographs of herself taken at a portrait
studio where the subject is given a fashion "makeover" of sorts before the photos are
taken: makeup is done, hair is styled, and clothing is selected to reflect different
moods. Pictures of Bales were taken in various poses and attire, including one where
she was wearing a jacket and another "in a low-cut, black dress that shows a lot of
skin." Id. vol. I at 67. When she received the proofs, she brought them to work and
showed them to various people in the pharmacy, including Vallejo. She later brought

                                          -6-
to work some finished wallet-sized photos of herself in a pose where she was wearing
the jacket, and gave them to certain people, including Vallejo. Vallejo then took it
upon himself to drive to the portrait studio in Des Moines, Iowa, to order more photos.
Bales testified that an employee at the studio later told her that Vallejo represented
himself to the employee as her boyfriend in order to purchase the photos. On the
morning of April 4, Vallejo presented Bales with photos of herself in one of the
"sexier" poses. Id. vol. II-B at 215. He said he actually had ordered a different pose
(he wanted the pose that showed her back, he told her) and since the studio made a
mistake, they had given him the photos for free, so he was giving them to her.

       The next day, Bales complained to assistant manager Julie Stock, who told Bales
she could go home if she wished, and she did. Stock then spoke with the store
manager. She was instructed to call Ron Anderson, pharmacy district manager for
Wal-Mart. He arrived at the store and took statements from Bales (who had been
called back to the store for the meeting with Anderson), Vallejo, and others in the
pharmacy department. Bales indicated to Anderson that she could no longer work with
Vallejo. When he learned that information from Anderson, Vallejo immediately began
looking for a replacement for Bales by posting the position, evidently assuming she
would be the one leaving the pharmacy. During his interview with Vallejo, Anderson
asked Vallejo if he would feel "more comfortable" if he, Vallejo, were transferred from
the store in Boone. Id. vol. III-A at 370 (testimony of Vallejo); vol. IV at 579
(testimony of Anderson). Vallejo declined and so he was not moved, but Bales was
reassigned to another department in the Boone store. Vallejo eventually was
reprimanded for inappropriate behavior. Bales continued to feel that Vallejo was
harassing her, actually stalking her, by wandering unnecessarily through her new
department and driving by her house. She asked for and received a transfer, to the
Wal-Mart store in Ames, Iowa, in October 1995. But there were scheduling problems,
in part because of the distance of the store from her home. She terminated her
employment with the Ames Wal-Mart in November 1995.


                                          -7-
                                            A.

        Vallejo argues that Bales failed to produce sufficient evidence that his behavior,
the conduct at issue here, was unwelcome, that is, "uninvited and offensive." Quick v.
Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996) (quoting Burns v. McGregor Elec.
Indus., Inc., 989 F.2d 959, 962 (8th Cir. 1993)). That the conduct in question is
unwelcome is "[t]he gravamen of any sexual harassment claim." Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 68 (1986). This is a fact question for the jury and "will
turn largely on credibility determinations." Quick, 90 F.3d at 1378. Therefore, the jury
here having found Vallejo's conduct toward Bales to be unwelcome, we will be hesitant
to reverse the finding of sexual harassment on this ground.

       Vallejo claims that Bales "gave him gifts and treat[ed] him like a friend" and
therefore his conduct toward her was invited. Brief of Vallejo at 30. It is undisputed
that Bales gave Vallejo--and his wife--a candle and a card for Christmas in 1994, nearly
a year after Bales started working in the pharmacy department and a few months before
she felt she could no longer work with Vallejo; she gave similar gifts to all of her co-
workers that Christmas. We conclude that this gift did not invite the behavior to which
Vallejo subjected Bales, nor did it "constitute an invitation to engage in sexual
discourse." Burns, 989 F.2d at 964 (agreeing with the district court that plaintiff's
having posed nude for a nationally distributed magazine did not lead inevitably to the
conclusion that workplace harassment was welcome). Bales also gave Vallejo, and
selected others working in the pharmacy, a wallet-sized photo of herself that she had
taken at the portrait studio in spring of 1995, in one of the more modest poses. This
was hardly an invitation for Vallejo to drive to Des Moines and purchase "sexier"
photos of Bales for himself, the incident that precipitated Bales's decision that she could
no longer work with Vallejo.

     Moreover, the record demonstrates that Bales made it known to Vallejo on a
number of occasions that she did not welcome his behavior. See Quick, 90 F.3d at

                                           -8-
1378 ("The proper inquiry is whether the plaintiff indicated by [her] conduct that the
alleged harassment was unwelcome."). She told him not to call her "honey" or "dear."
Transcript vol. I at 29 (testimony of Bales); id. vol. III-A at 358 (testimony of Vallejo).
She complained about the hair-pulling. She told him she was "not comfortable with
some of the things he was saying," and believed her response was adequate to let him
know she was "offended." Id. vol. I at 32. At the time of the inhaler incident, Bales
told Vallejo that he was "sick" and walked away. Id. vol. I at 46 (testimony of Bales);
vol. III-A at 358 (testimony of Vallejo). She told him to stop calling her Nancy Hart
("his one true love"). Id. vol. I at 48. Vallejo himself admits that, before the final
incident with the photos, Bales complained to him "four or five" times about his
conduct towards her. Id. vol. III-A at 379, 402.

       Even if the nature of the conduct at issue here is not sufficient on its face to
demonstrate that it was uninvited and offensive, see Caviness v. Nucor-Yamato Steel
Co., 105 F.3d 1216, 1223 (8th Cir. 1997) ("[I]t stretches credulity to conceive that a
reasonable jury might have thought [plaintiffs] welcomed from their co-workers the
conduct detailed in the evidence at trial."), the evidence of Bales's reaction to it, in
Vallejo's presence, is sufficient to support the jury's finding that his behavior toward her
was unwelcome.

                                            B.

       Wal-Mart alleges that only a few of the incidents at issue in this case "have a
sexual connotation," and then proceeds to list eight such incidents in evidence. Brief
of Wal-Mart at 32. Based on this reading of the record, Wal-Mart then argues that
Bales failed to show that the harassment was based on sex. This argument verges on
the frivolous.

       As the Supreme Court recently has reiterated, harassment is not "automatically
discrimination because of sex merely because the words used have sexual content or

                                            -9-
connotations." Oncale v. Sundowner Offshore Svcs., Inc., 118 S. Ct. 998, 1002 (1998).
But as Wal-Mart's half-hearted argument on this point attests, this element is not
seriously at issue in the case. The record speaks for itself, and to contend that Vallejo's
behavior was not based on sex is disingenuous. No one, not even Wal-Mart, suggests
for a moment that Vallejo would have engaged a male co-worker in the conversations
in which he engaged Bales, or that he would have behaved toward a male employee as
he did towards Bales. Cf. id. ("[I]t is reasonable to assume [explicit or implicit proposals
of sexual activity] would not have been made to someone of the same sex."). A
reasonable jury easily could find that Vallejo's harassment of Bales was based on sex.

                                            C.

      Both Wal-Mart and Vallejo contend that the incidents in evidence were not so
"severe or pervasive" as to alter Bales's work conditions and amount to actionable sexual
harassment. Meritor Sav. Bank, 477 U.S. at 67. We think the record belies that claim.

       "In conducting its fact-based inquiry into the severity and pervasiveness of the
conduct . . ., the jury looks at all the circumstances supported by credible evidence."
Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997); accord Crist v. Focus
Homes, Inc., 122 F.3d 1107, 1111 (8th Cir. 1997) (noting "fact-intensive" nature of the
determination of whether a work environment is hostile within the meaning of Title VII,
"including the frequency of the conduct and its severity"). Having examined the record,
we conclude that there was substantial credible evidence to support the jury's finding of
severity and pervasiveness. Vallejo's behavior was neither isolated nor innocent. The
comments and conduct directed at Bales were offensive, oftentimes overtly sexual or
personal. Bales was "[d]emeaned" and "embarrassed" by Vallejo's actions. Transcript
vol. I at 33. She felt that Vallejo, with some of his behavior, was trying to "intimidate"
her and make her feel "scared." Id. vol. I at 37. It is true that ordinarily




                                           -10-
"[a] single offensive utterance or exposure to distasteful conduct does not rise to the
level of a Title VII violation." Hathaway, 132 F.3d at 1221. But that does not describe
the record in this case. The incidents recounted at trial began soon after Bales started
work in the pharmacy department and continued until shortly before her departure from
the Boone Wal-Mart. Vallejo's offensive actions abated only for short periods of time
when Bales would indicate that she was upset with him, and then they would begin
anew. To the extent the record shows the dates of the incidents described, it would
appear that the frequency of the troublesome conduct waxed and waned, and that there
were times when Vallejo was more restrained in his conduct than he was at other times.
But there was a clear pattern of offensive conversation and behavior, not merely an
isolated incident or two. The evidence thus permitted the jury to find that the cumulative
effect of Vallejo's conduct was to create a hostile work environment based on sexual
harassment. See Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997) (noting
that conditions of employment are altered by harassment if the employee is discouraged
from remaining in her job). "There is no bright line between sexual harassment and
merely unpleasant conduct so a jury's decision must generally stand unless there is trial
error." Hathaway, 132 F.2d at 1221. On this record, we see no reason to disturb the
jury's findings.

                                           D.

      Finally, Wal-Mart argues that there was insufficient evidence that it knew or
should have known of the harassment and failed to take proper remedial action.
According to Wal-Mart, as soon as its managers knew of Bales's allegations, after the
incident with the photos, they investigated and took appropriate corrective action by
reprimanding Vallejo (but moving Bales, not Vallejo, out of the pharmacy department
when she indicated she could no longer work with him).4 It is true that Wal-Mart


      4
       We do not need to address whether the action taken by Wal-Mart in relocating
Bales instead of Vallejo was proper remedial action.

                                          -11-
management responded promptly after the photo incident. But the contention that
management was unaware of the harassment until April 1995 misrepresents the record.

       Fairly early in her tenure with the pharmacy department, Bales complained to
Donna Bollenbaugh about Vallejo's behavior toward Bales. Bollenbaugh was the over-
the-counter manager in the pharmacy. Wal-Mart contends that Bollenbaugh was not
Bales's manager nor was she a supervisor, so she was not the proper person for Bales
to approach with her concerns. We read the record differently. Bales; Bollenbaugh; Al
Beckum, an assistant manager at the Boone Wal-Mart during the relevant period; and
Lonnie Neubauer, store manager at Boone, all acknowledged in their testimony at trial
that Bollenbaugh had supervisory authority over Bales. See Transcript vol. I at 39; vol.
II-B at 259, 264; vol. III-A at 322. Neubauer responded affirmatively to the inquiry,
"Under [Wal-Mart's] open-door policy, it would be appropriate for Nancy Bales to
complain to Donna Bollenbaugh, her supervisor, about any harassment she felt she was
the victim of?" Id. vol. III-A at 334. Although not the most senior management person
to whom Bales might have complained, there is sufficient evidence that Bollenbaugh was
a proper person for Bales to approach with her complaints.

       It is clear from the record that Bales complained to Bollenbaugh repeatedly about
Vallejo's conduct. When approached by Bales, Bollenbaugh, who indicated that she was
independently aware of the problem, told Beckum and Neubauer about the harassment,
and believed at that point that her responsibilities were fulfilled. Neubauer told
Bollenbaugh to tell Bales to come to him, but Bollenbaugh did not relay that message to
Bales. When Bales did not come to him, Neubauer did not follow up. Likewise,
Beckum did not follow up on Bales's complaint delivered to him via Bollenbaugh. No
one spoke to Bales or to Vallejo or to the other employees in the pharmacy department
about Bales's complaints until April 5, 1995, after the proverbial "last straw," when
Bales said she could no longer work with Vallejo. We conclude there is ample evidence
in the record to show that Bales's employer knew about her


                                         -12-
complaints of sexual harassment by Vallejo months before the incident with the photos
in April 1995, and that it failed to take appropriate steps to remedy the situation.5

                                            II.

        Wal-Mart also asks us to decide whether "the trial court erred in finding Wal-Mart
vicariously liable for Vallejo's acts." Brief of Wal-Mart at 24. After the jury reached
its verdict, awarding Bales $28,000 in damages against Vallejo, the District Court, upon
deciding post-trial motions, held that "[l]iability on [these] claim[s] can be imposed only
against Wal-Mart as the common employer of Bales and Vallejo." Bales, 972 F. Supp.
at 488, 489. The court then granted in part Vallejo's motion for JAML, as to the claims
against him in his individual capacity, and amended the judgment "to state that it is
against Vallejo in his official capacity only." Id. at 493.6 At that point,

      5
         Now pending before the Supreme Court is the case of Faragher v. City of Boca
Raton, 118 S. Ct. 438 (1997) (argued March 25, 1998), resolution of which (along with
other cases the Court will decide this term) may definitively answer the question
whether an employer may be held strictly liable for sexual harassment resulting from
a hostile work environment when the harassment is committed by a supervisory
employee. It is currently the law of this Circuit, recently reaffirmed, that "[e]ven when
the hostile environment was created by a supervisor's sexual harassment, the employer
is not liable unless it 'knew or should have known of the harassment yet failed to take
proper remedial action.'" Todd v. Ortho Biotech, Inc., ___ F.3d ___, ___, Nos. 97-
1126, 97-1220, 1998 WL 92207, at *3 (8th Cir. Mar. 5, 1998) (quoting Davis v. City
of Sioux City, 115 F.3d 1365, 1368 (8th Cir. 1997)). In any event, we need not wait
for resolution of Faragher or the other cases because we conclude Wal-Mart knew or
should have known of Vallejo's harassment of Bales.
      6
        In its brief, Wal-Mart mentions ICRA but does not make a legal argument for
reversal of the court's holding under state law. See Brief of Wal-Mart at 24-28; Reply
Brief of Wal-Mart at 2-6. The company argues for reversal under Title VII. Bales, as
appellee, responds that the District Court did not err in holding Wal-Mart liable for the
damages the jury originally assessed against Vallejo. As cross appellant, however,
Bales argues that "[t]he district court improperly dismissed the Plaintiff's claim against

                                          -13-
Wal-Mart, which of course employed Vallejo, became responsible for paying all of the
damages to Bales.

       After the District Court opinion was issued in this case (but before the briefs were
filed) we noted in a per curiam opinion that "[o]ur Court quite recently has squarely held
that supervisors may not be held individually liable under Title VII." Bonomolo-Hagen
v. Clay Central-Everly Community Sch. Dist., 121 F.3d 446, 447 (8th Cir. 1997) (citing
Spencer v. Ripley County State Bank, 123 F.3d 690, 691-92 (8th Cir. 1997) (per
curiam)). Thus the District Court properly decided that Vallejo could be liable only in
his capacity as an employee of Wal-Mart and that the damages assessed against Vallejo
were properly imposed upon the "common employer" of Bales and Vallejo. Lenhardt
v. Basic Inst. of Tech., Inc., 55 F.3d 377, 380 (8th Cir. 1995) (dictum); see, e.g., Haynes
v. Williams, 88 F.3d 898, 901 (10th Cir. 1996) ("[S]tatutory liability [under Title VII]
is appropriately borne by employers, not individual supervisors."); Gary v. Long, 59 F.3d
1391, 1399 (D.C. Cir.) ("[W]hile a supervisory employee may be joined as a party
defendant in a Title VII action, that employee must be viewed as being sued in his
capacity as the agent of the employer, who is alone liable for a violation of Title VII.")
(emphasis added), cert. denied, 516 U.S. 1011 (1995).

      The jury found a violation of Title VII, and also found both Vallejo and Wal-Mart
were liable to Bales for that violation. The jury further found that Bales was actually
damaged in the amount of $28,000. Considering that Vallejo can be liable only in his
capacity as a Wal-Mart employee, and given Wal Mart's culpability as



Defendant Vallejo in his individual capacity under" ICRA. Id. at 47. She did not
designate this as a protective cross appeal. Nevertheless, at oral argument counsel for
Bales agreed that resolution of the question whether there can be individual liability
under ICRA (a question that has yet to be addressed by the Iowa Supreme Court) is
unnecessary if we find that Wal-Mart is liable under Title VII. Because of our holding
under federal law, we need not and do not consider the state law question.

                                          -14-
determined by the jury, it is neither an error of law nor inequitable to order Wal-Mart to
pay the full amount of the damages the jury awarded to Bales.

                                           III.

      The judgment of the District Court is affirmed in all respects.

      A true copy.

             Attest:

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




                                          -15-
