                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 00-3990
                                 ___________

Lawrence J. Mathieu,                *
                                    *
          Plaintiff-Appellee,       *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * District of Minnesota.
Gopher News Company,                *
                                    *
          Defendant-Appellant.      *
                               ___________

                            Submitted: October 15, 2001

                                Filed: December 11, 2001
                                 ___________

Before WOLLMAN, Chief Judge, LAY and RILEY, Circuit Judges.
                             ___________

LAY, Circuit Judge.

       A jury found that Gopher News Company discriminated against Lawrence J.
Mathieu on the basis of disability. It awarded back pay and damages for emotional
harm and recommended front pay. The magistrate judge1 sitting by consent of the
parties entered judgment on the verdict and awarded the front pay recommended by
the jury. The magistrate judge multiplied the entire award by 1.5 pursuant to
Minnesota Human Rights Act (MHRA) § 363.071 subd. 2 and awarded Mathieu

      1
       The Honorable Franklin L. Noel, Chief United States Magistrate Judge,
District of Minnesota, presiding.
attorney’s fees. Gopher News asserts various errors of law. We affirm in part and
reverse in part.

       Mathieu worked for Gopher News for thirty-four years, the last sixteen as
Manager of Customer Delivery Services. This job not only involved managerial and
administrative tasks, but also required Mathieu to be available to fill in for absent
route drivers. The latter duties could involve ten to twelve hour days on the road and
require lifting twenty to sixty pound “totes” out of a truck.

       In January 1996, at the age of fifty-three, Mathieu was diagnosed with arterial
blockage. He underwent quintuple bypass surgery. In March of 1996, Mathieu
returned to work for Gopher News with six-hour shifts, three days per week. A few
weeks later, he returned full-time, subject to a forty pound lifting restriction. Gopher
News made reasonable accommodations for Mathieu’s limitations. Shortly after
returning full-time Mathieu’s doctors lifted all restrictions, and by the end of the year
he was again working fifty to seventy hour weeks.

       During late December 1996, Mathieu again experienced chest pains. His
doctors explained that the pain was musculo-skeletal in origin; the lifting required by
his job was impeding healing of the surgical incision through his sternum. His
doctors reimposed restrictions, limiting Mathieu to a forty hour week and a forty
pound lifting maximum. Mathieu informed his employer. Four days later he was
terminated as Manager of Customer Delivery Services. Gopher News asserted at trial
that his position was eliminated. Mathieu alleged he was terminated due to age and
disability discrimination.

     After a trial, the jury rejected the age discrimination claim but found for
Mathieu on the disability discrimination claim. It awarded back pay of $94,370;
recommended front pay of $288,466; and awarded damages for mental anguish in the
amount of $165,000. The magistrate judge denied all post-trial motions by Gopher

                                          -2-
News and added interest for back pay, reduced the front pay award to present value,
and multiplied the entire award by 1.5 pursuant to the MHRA. The court awarded
Mathieu attorney’s fees.

       Gopher News asserts various issues on appeal. It argues Mathieu’s restrictions,
a forty hour week and a forty pound lifting limit, do not constitute a disability under
the Act. It asserts there was insufficient evidence for the jury to find Gopher News
regarded Mathieu as disabled. It asserts the magistrate judge erred by awarding front
pay rather than reinstatement and argues that all awards were excessive. It argues the
magistrate judge erroneously held that Mathieu reasonably mitigated his damages.
Gopher News argues the magistrate judge erred in its application of the MHRA
multiplier. Finally, Gopher News asserts the magistrate judge erred by not granting
a new trial.

                                     I. Disability

       Initially, Gopher News asserts that, as a matter of law, a forty hour week and
a forty pound lifting restriction do not substantially limit one’s ability to work and,
therefore, do not constitute a disability. 42 U.S.C. § 12102(2)(A). It also asserts
there is no evidence it ever regarded Mathieu as disabled. 42 U.S.C. § 12102(2)(C).
It urges that the magistrate judge erred as a matter of law in finding Mathieu disabled.
Mathieu engages these arguments on the merits but also asserts this court should not
consider the merits because Gopher News failed to preserve the questions by failing
to renew its motion under Federal Rules of Civil Procedure 50(b) at the close of the
evidence at trial. We agree with this latter contention.

        Gopher News moved for a judgment as a matter of law at the close of
Mathieu’s case in chief. The motion came at the end of the second day of trial, so the
trial court reserved ruling until the parties could present arguments the following day.
The court heard arguments the next morning and denied Gopher News’ motion. The

                                          -3-
trial thereafter continued; Gopher News presented its defense and Mathieu took the
stand in rebuttal. This testimony lasted between five and six hours. The plaintiff
rested his rebuttal at the end of the day. Gopher News did not renew its motion for
judgment as a matter of law at the close of all the evidence, and the court submitted
the case to the jury.

        Gopher News asserts various grounds on which its failure to renew its motion
at the close of the evidence should be excused. It asserts Rule 50(b) does not apply
because the issues it presents involve purely questions of law, not implicating the
sufficiency of the evidence. Alternatively, it asserts an exception to the rule applies;
it asks the court to adopt an exception to the rule “where its purposes have been met.”

        First, it is clear that Rule 50 applies. Judgment as a matter of law is appropriate
where “a party has been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue . . . .” Fed.
R. Civ. P. 50(a). In Americans with Disabilities Act (ADA) cases, the question
presented is whether the particular individual, under the evidence presented, suffers
a substantial limitation on a major life activity and, thus, a disability. This court is
instructed to view the evidence for purposes of this individual inquiry. See, e.g.
Sutton v. United Airlines, Inc., 527 U.S. 471, 483 (1999) (“[D]isabilities [should] be
evaluated ‘with respect to an individual’ and be determined based on whether an
impairment substantially limits the ‘major life activities of such individual.’ Thus,
whether a person has a disability under the ADA is an individualized inquiry.”)
(internal citations omitted); Webner v. Titan Distribution, Inc., 267 F.3d 828, 834 (8th
Cir. 2001) (restriction of lifting up to fifty pounds “substantially limited [employee’s]
ability to work, to twist, to bend, and to stand, in addition to limiting his ability to
lift”); Kellogg v. Union Pacific R. Co., 233 F.3d 1083, 1087 (8th Cir. 2000) (“Given
the numerous factors a court must weigh, the determination of whether an individual
is substantially limited in the major life activity of working is made on a case by case
basis.”); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 949 (8th Cir. 1999)

                                           -4-
(“[T]he ADA is concerned with preventing substantial personal hardship in the form
of significant reduction in a person’s real work opportunities. A court must ask
‘whether the particular impairment constitutes for the particular person a significant
barrier to employment’ . . . .”) (citing Webb v. Garelick Mfg. Co., 94 F.3d 484, 488
(8th Cir. 1996)).

       This case is no different. Gopher News asks this court to rule that a forty hour
week and a forty pound lifting restriction do not constitute a disability as a matter of
law. However, as stated, every case requires an individualized inquiry into the impact
of the plaintiff’s restrictions. Likewise, whether Mathieu is disabled required inquiry
into the sufficiency of the evidence presented at trial. The trial court considered the
evidence presented in drawing its conclusions on the disability issue. See Order
(Nov. 1, 2000) at 13-18. Consequently, we hold Rule 50 applies.

      Rule 50(b) states:

      If, for any reason, the court does not grant a motion for judgment as a
      matter of law made at the close of all the evidence, the court is
      considered to have submitted the action to the jury subject to the court’s
      later deciding the legal questions raised by the motion. The movant may
      renew its request for judgment as a matter of law by filing a motion no
      later than 10 days after entry of judgment–and may alternatively request
      a new trial or join a motion for a new trial under Rule 59. . . .

      It is well established that judgment as a matter of law following a jury verdict
cannot be had by a party who fails to renew its motion, pursuant to Rule 50(b), at the
close of all the evidence. Interpretation of Rule 50(b) is set out by the Advisory
Committee. See Fed. R. Civ. P. 50(b) advisory committee’s note (1963 Amendment)
(“A motion for judgment notwithstanding the verdict will not lie unless it was
preceded by a motion for a directed verdict made at the close of all the evidence.”);
Fed. R. Civ. P. 50(b) advisory committee’s note (1991 Amendment) (“This provision


                                          -5-
retains the concept of the former rule that the post-verdict motion is a renewal of an
earlier motion made at the close of the evidence.”). This interpretation is cited by
recognized authorities on federal practice and procedure. See 9 James Wm. Moore,
et al. Moore’s Federal Practice §§ 50.20[3], 50.40[1], 50.91[1] (3d ed. 2001). It is
unanimously approved by the courts, including this circuit. See, e.g. Jackson v. City
of St. Louis, 220 F.3d 894, 896 (8th Cir. 2000); Duckworth v. Ford, 83 F.3d 999,
1001 (8th Cir. 1996); Pulla v. Amoco Oil Co., 72 F.3d 648, 655 (8th Cir. 1995).

       The rule also is supported by sound policy. The Seventh Amendment preserves
the right to a jury trial for civil litigants. U.S. Const. Amend. VII (“In Suits at
common law, where the value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-
examined in any Court of the United States, than according to the rules of the
common law.”). One purpose of the rule requiring renewal of a motion for judgment
as a matter of law is to avoid any question arising under that amendment. Fed. R.
Civ. P. 50(b) advisory committee’s note (1991 Amendment) (citing Montgomery
Ward & Co. v. Duncan, 311 U.S. 243 (1940)). Specifically, “[t]he twin purposes of
the rule are to: (1) enable the trial court to examine all of the evidence before
submitting the question to the jury; and (2) alert the opposing party to any defect in
its case, thereby affording it an opportunity to cure any such defects.” Pulla, 72 F.3d
at 655 n.8 (citing Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 294 (8th Cir. 1982),
cert. denied, 459 U.S. 1205 (1983); 5 Moore § 50.08 at 50-88).

      Notwithstanding the venerable rule, Gopher News urges this court to make an
exception for its failure to renew its motion. It cites several sources for such an
exception, none of which we find persuasive.

      First, Gopher News urges as an exception that “technical noncompliance with
Rule 50(b) may be excused [where] the purposes of the rule are satisfied.” Scottish
Heritable Trust, PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1995).

                                         -6-
This circuit has never recognized this exception. Moreover, even were we to adopt
it, Gopher News has not satisfied the exception’s requirements. For example, Gopher
News’ president testified after the defendant had moved for judgment as a matter of
law following plaintiff’s case. As the employer’s primary decision maker, his
testimony clearly weighed on the ultimate decision as to whether Gopher News
regarded Mathieu as disabled. Indeed, he expressly testified that he did not perceive
Mathieu as disabled, although he was aware of Mathieu’s restrictions. Mathieu
testified on rebuttal. Consequently, the trial court had no opportunity to examine all
of the evidence before submitting the question to the jury.

      Similarly, Gopher News asserts an exception where

      (1) the party files a Rule 50 motion at the close of the plaintiff’s case;
      (2) the district court defers ruling on the motion; (3) no evidence related
      to the claim is presented after the motion; and (4) very little time passes
      between the original assertion and the close of defendant’s case.

Pulla, 72 F.3d at 656 (discussing the exception in dicta).2 This circuit has never
adopted this “broad exception” to Rule 50(b). We do not believe it would be proper
to adopt it here. The language and traditional application of Rule 50 are clear;
objections must be filed at the close of the evidence to preserve any post-trial
challenges to the verdict. This is the clearly established rule in this circuit. See BE
& K Constr. Co. v. United Bhd. of Carpenters & Joiners of Am., 90 F.3d 1318, 1325

      2
        In Pulla, a panel of this court recognized that we have previously assumed,
without deciding, that we would adopt this exception. See Myers v. Norfolk
Livestock Market, Inc., 696 F.2d 555, 558 (8th Cir. 1982). However, the Pulla court
also recognized authority which refused to adopt this “flexible approach.” See Pulla,
72 F.3d at 655 n.11 (citing DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193,
1194 n.4 (3d Cir. 1978). We suggest the latter approach is the correct one; Rule 50’s
clear command should be strictly construed. Cf. Leatherman v. Tarrant County
Narcotics & Coordination Unit, 507 U.S. 163 (1993) (federal courts have no
discretion to ignore civil rules).

                                         -7-
(8th Cir. 1996) (“If a party does not move for judgment as a matter of law at the close
of all the evidence, it normally cannot later argue that there was insufficient evidence
to support the verdict.”). Strict adherence to the rule comports with its underlying
policy of preventing questions concerning compliance with the Seventh Amendment.
See Fed. R. Civ. P. 50(b) advisory committee’s note (1991 Amendment) (citing
Montgomery Ward, 311 U.S. 243.

       However, even if we were to adopt such an exception to Rule 50(b), Gopher
News would not satisfy its requirements. Gopher News moved for judgment as a
matter of law following the close of Mathieu’s case, satisfying the first requirement.
However, the court did not defer its ruling or otherwise suggest that Gopher News
need not renew the motion at the close of the evidence; it ruled immediately
following the parties’ arguments on the third day of trial. Moreover, evidence
concerning the issues of disability or perceived disability was presented after Gopher
News’ motion. As noted above, both Gopher News’ president and Mathieu testified
on the final day. Finally, more than “a very little time” passed between the court’s
ruling on the motion and the close of the evidence. Over five hours of testimony were
heard and at least four witnesses testified during that time. We hold that Gopher
News would fail to satisfy the requirements for the broad exception to Rule 50(b) it
suggests.

      On the basis of the credible evidence presented, the jury found that Mathieu
was disabled, or at least Gopher News perceived him as disabled. We cannot find the
magistrate judge committed plain error by enforcing this verdict and affirm his
judgment refusing to grant Gopher News judgment as a matter of law.




                                          -8-
                                     II. Remedies

A. Reinstatement versus Front Pay

       Gopher News asserts the magistrate judge erred by awarding Mathieu front pay
rather than reinstatement. Front pay is an exceptional remedy and should only be
awarded in lieu of reinstatement when extraordinary circumstances render
reinstatement “impractical or impossible.” Newhouse v. McCormick & Co., Inc., 110
F.3d 635, 641 (8th Cir. 1997) (citing Philipp v. ANR Freight Sys., Inc., 61 F.3d 669,
674 (8th Cir. 1995)). However, the cases are legion that “substantial hostility, above
that normally incident to litigation, is a sound basis for denying reinstatement.”
United Paperworkers Int’l Union Local 274 v. Champion Int’l Corp., 81 F.3d 798,
805 (8th Cir. 1996); see also Denesha v. Farmers Ins. Exchange, 161 F.3d 491, 501
(8th Cir. 1998) (holding that hostility justifying front pay should be such that “a
productive and amicable working relationship would be impossible”) (citing Brooks
v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir. 1988)).

       “In making a front pay award, the district court is not free to reject or contradict
findings by the jury on issues that were properly submitted to the jury,” although it
“‘retains its discretion to consider all the circumstances in th[e] case when it
determines what equitable relief may be appropriate.’” Newhouse, 110 F.3d at 641
(citing Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1101 (8th Cir. 1982)). A
judgment of the district court awarding front pay is reviewed for abuse of discretion.
See id.

       Following trial, the jury found that Mathieu was disabled or had been perceived
as disabled by Gopher News.3 Because Gopher News did not preserve its motion for


      3
       On appeal, there is some confusion as to precisely what the jury found. The
relevant jury question, as presented by the court, read, “did the plaintiff have, or was

                                           -9-
judgment as a matter of law, the court was bound by that finding. Turning to the
question of the appropriate equitable relief, the court found evidence of hostility
between Mathieu and Gopher News likely to preclude an amiable employment
relationship. The court noted Mathieu had been unfairly terminated after thirty-four
years of service. It found that Gopher News failed to offer reasonable
accommodations at the time of his discharge, and if Mathieu was reinstated,
additional disputes about reasonable accommodations for his ongoing limitations
would be inevitable. Perhaps most importantly, Gopher News’ president was the
person responsible for the discriminatory decisions and would be the person
ultimately responsible for overseeing any reinstatement of Mathieu. This court has
held a similar relationship to be sufficient evidence of hostility to preclude a finding
of abuse of discretion by the district court in awarding front pay. See Newhouse, 110
F.3d at 641. We hold that the magistrate judge did not abuse his discretion by
awarding front pay over reinstatement.

B. Amount of the Front Pay Award

      Gopher News asserts the amount of front pay awarded by the magistrate judge
was clearly excessive. Following its deliberations, the jury recommended a front pay
award of $288,466. The magistrate judge recognized that the award was advisory in
nature, but awarded the full amount, discounting it to present value. Gopher News
believes this award should be reversed. The lower court’s award of front pay is




he perceived by defendant to have, a disability.” Trial Transcript at 750. Thus, the
general verdict makes it uncertain whether the jury found that Mathieu was actually
disabled under 42 U.S.C. § 12102(2)(A) or only perceived as disabled under 42
U.S.C. § 12102(2)(C) or both as long as there was substantial evidence to support
either finding. Fortunately, this uncertainty has no effect on our decision. An
affirmative answer to either one satisfies the disability requirement for liability. See
42 U.S.C. § 12102(2).

                                         -10-
reviewed for abuse of discretion. Hukkanen v. Int’l Union of Operating Eng’rs Local
No. 101, 3 F.3d 281, 286 (8th Cir. 1993).

       Gopher News asserts the amount of front pay awarded by the magistrate judge
represents eight years of front pay. Fifty-seven years old at the time the trial
concluded, an award of eight years front pay constitutes the remainder of Mathieu’s
working career, assuming retirement at age sixty-five. Gopher News argues the
magistrate judge failed to make specific factual findings why the amount awarded
was required to make Mathieu whole and, in any event, awarding front pay for the
remainder of Mathieu’s working life is inherently speculative. Because there is no
evidence that Mathieu, an employee at will, would have worked for Gopher News
until age sixty-five or that he will be unable to find comparable work within the next
eight years, Gopher News asserts that the magistrate judge abused his discretion by
awarding front pay for the entire period.

       In United Paperworkers, 81 F.3d 798, the lower court awarded front pay for the
remainder of the plaintiff’s working life. That award amounted to front pay for
twenty-four years. We stated: “An award of front pay until retirement ignores the
plaintiff’s duty to mitigate damages and the district court’s corresponding obligation
to estimate the financial impact of future mitigation.” Id. at 805. We also noted that
plaintiff’s young age made mitigation sufficiently likely that the award of front pay
was an abuse of discretion. Id.

       In Newhouse, the lower court also awarded front pay for the remainder of the
plaintiff’s working life. That plaintiff had been employed by the defendant for
twenty-three years. This court affirmed the award. See Newhouse, 110 F.3d at 641-
42 (“If a plaintiff is close to retirement, front pay may be the only practical
approach.”) (citing Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.), cert.
denied, 502 U.S. 693 (1991)).



                                        -11-
       Likewise, Mathieu was near retirement by the close of the trial and, obviously,
is even closer now. At trial, Mathieu testified he had planned to work for Gopher
News until age sixty-five. He provided expert testimony that given his minimal
education, age, employment with one company for thirty-five years,* and disability
it was unlikely he would ever achieve the level of income and benefits he enjoyed in
his prior position There also was evidence that Mathieu’s attempts to mitigate his
damages had failed. There was evidence supporting the amount of front pay awarded
as the amount necessary to compensate Mathieu for his lost earnings. For this court
to speculate otherwise and simply lower the number of years of front pay would not
be based on any evidence. Under the circumstances, we hold the magistrate judge did
not abuse his discretion by relying upon this evidence and awarding front pay in the
amount recommended by the jury.

C. The Minnesota Human Rights Act Multiplier

       Following calculation of the awards, the magistrate judge multiplied the entire
award by 1.5 to reach the total amount awarded to Mathieu. The magistrate judge
justified this action, stating it would serve to entice members of the bar to privately
enforce the MHRA. Gopher News asserts the magistrate judge’s application of the
MHRA multiplier was error because he did not consider whether application of the
multiplier was necessary to fully compensate Mathieu, and in any event, the size of
Mathieu’s award was sufficient to entice members of the bar to enforce the MHRA
without multiplication. Gopher News also asserts the multiplier should not be applied
to awards for front pay or emotional harm. Application of the MHRA multiplier is
vested in the trial courts’ discretion. See Phelps v. Commonwealth Land Title Ins.
Co., 537 N.W.2d 271, 274, 276 (Minn. 1995).



      *
        The record contains an agreement of both parties that Mathieu had worked
thirty-four years; the expert mistakenly stated that he had worked thirty-five years.

                                         -12-
       The argument that application of the multiplier must be tied to compensatory
purposes has been rejected by the Minnesota courts. In Phelps, the Minnesota
Supreme Court held that “[s]ubdivision 2 contains no guidelines as to when or under
what circumstances a trial court may multiply damages.” 537 N.W.2d at 274. The
court refused to manufacture its own guidelines, rather stating that “subdivision 2
unambiguously vests trial courts with the discretion to multiply damages.” Id. It
went on to hold that, “[Defendant’s] contention that a trial court must tie the
multiplication of damages to a finding of uncompensated damages is erroneous, and
to the extent that [prior Minnesota cases] support this contention, they too are
erroneous.” Id. at 275.

       Likewise, the court’s determination to encourage private enforcement of the
MHRA is a valid justification for application of the multiplier. Not only is the court’s
discretion broad, but the Minnesota Supreme Court also noted in Phelps that
“[l]egislative history indicates that one objective the legislature sought to achieve
through enactment of subdivision 2 was the enticement of the private bar into
bringing claims based on violations of the MHRA.” 537 N.W.2d at 277 (citing
Hearing on S.F. 1762, S. Judiciary Comm. 73rd Minn. Leg., March 28, 1984
(comments of Sen. Reichgott)). That being the case, Gopher News’ argument that the
base award itself provided incentive for private enforcement fails for lack of common
sense. If encouraging private enforcement of the MHRA is a legitimate goal, a larger
award will provide greater incentive toward that end.

       Gopher News’ arguments that the magistrate judge erred by multiplying the
jury’s awards for front pay and emotional harm have some partial merit. The MHRA
§ 363.071 subd. 2 states in pertinent part:

         [If the court] finds that the respondent has engaged in an unfair
         discriminatory practice the [court] shall order the respondent to pay
         an aggrieved party, who has suffered discrimination, compensatory


                                         -13-
         damages in an amount up to three times the actual damages
         sustained. In all cases, the [court] may also order the respondent
         to pay an aggrieved party, who has suffered discrimination,
         damages for mental anguish or suffering and reasonable attorney’s
         fees, in addition to punitive damages in an amount not more than
         $8,500.

       The magistrate judge’s application of the multiplier to the emotional harm
award is a close question. As noted above, the multiplier is to be applied to actual
damage awards in order to determine total compensatory damages. See MHRA
§ 363.071 subd. 2. At first blush, the plain language of subdivision 2 appears to limit
the definition of actual damages for the purpose of that statute. The first sentence
states that actual damages may be multiplied. The second sentence states that the
district court may also award damages for mental anguish or suffering. One could
read this subdivision, paying particular attention to the order of the sentences and the
fact that damages for mental anguish are specifically set apart, to mean that damages
for emotional harm are to be calculated apart from those damages subject to
multiplication, whatever they may be. Indeed, such an interpretation of the statute
has been followed frequently, if implicitly, by the Minnesota courts. See, e.g. Todd
v. Ortho Biotech, Inc., 949 F. Supp. 724, 730 (D. Minn. 1996), rev’d on other grounds
138 F.3d 733 (8th Cir. 1998); Kriss v. Sprint Communications Co., 851 F. Supp.
1350, 1360-61 (D. Minn. 1994), rev’d on other grounds 58 F.3d 1276 (8th Cir. 1995);
Phelps, 537 N.W.2d at 273, 273 (noting trial court action); Bradley v. Hubbard
Broadcasting, Inc., 471 N.W.2d 670, 674 (Minn. Ct. App. 1991) (same); Melsha v.
Wickes Cos., Inc., 459 N.W.2d 707, 708-09 (Minn. Ct. App. 1990) (same). But see
Kohn v. City of Minneapolis Fire Dept., 583 N.W.2d 7, 10 (Minn. Ct. App. 1998)
(noting that the district court multiplied award for emotional harm).

     However, as a general rule, actual damages include awards for emotional harm.
See Phelps, 537 N.W.2d at 275 & n.2 (noting that it is well settled that “actual
damages” are synonymous with “compensatory damages,” and compensatory

                                         -14-
damages include both general and special damages) (citing Black’s Law Dictionary
390 (6th ed.)); Minneapolis Police Dept. v. Minneapolis Comm’n on Civil Rights,
402 N.W.2d 125, 132 (Minn. Ct. App. 1987), aff’d 425 N.W.2d 235, 238 (Minn.
1988) (“An actual compensable injury means physical injury, monetary expenses, lost
earnings, impairment of reputation, personal humiliation, or mental anguish.”).
Moreover, although apparently no Minnesota court has expressly addressed this issue
in a published opinion, the Minnesota Court of Appeals has done so in an
unpublished opinion. It held that damages for emotional distress were actual
damages subject to multiplication. Huffman v. Pepsi-Cola Bottling Co. of
Minneapolis & St. Paul, No. C7-94-2404, 1995 WL 434467 at *5 (July 25, 1995)
(unpublished opinion) (“Damages for emotional distress, however, are included as
part of actual damages. As such, those damages are subject to being [multiplied].”).
That opinion lacks precedential value, but it makes clear that the multiplier provision
is subject to multiple interpretations. We do not sit as final arbiters of questions of
state law. Consequently, we cannot say the magistrate judge abused his discretion by
adopting one plausible interpretation of the multiplier provision.

       We do not arrive at the same conclusion when considering the use of the one
and one-half multiplier authorized by MHRA on the issue of front pay. Although,
traditionally, we have left questions of front pay to the discretion of the district court
and have seldom intervened in the award of front pay or in the amount of front pay,
there is no precedent or even dicta by any Minnesota court stating that the multiplier
should be used to increase awards of front pay. On the contrary, we find numerous
reasons why the MHRA’s authorization to multiply actual damages provides no basis
on which to multiply an award of front pay.

      The MHRA authorizes multiplication of actual damages sustained. See MHRA
§ 363.071 subd. 2. Front pay is an equitable remedy, not legal damages. See
Newhouse, 110 F.3d at 641. Although the magistrate judge utilized an advisory jury
in deciding whether front pay or reinstatement should be awarded, it was the judge

                                          -15-
who rejected reinstatement and ordered front pay from the time of Mathieu’s
termination to the date that he would turn sixty-five. Moreover, as we have noted in
several cases, front pay is the alternative to the preferred equitable remedy of
reinstatement. See, e.g. Kramer v. Logan County Sch. Dist. No. R-1, 157 F.3d 620,
626 (describing front pay as “not so much a monetary award for the salary that the
employee would have received but for the discrimination, but rather the monetary
equivalent of reinstatement, to be given in situations where reinstatement is
impracticable or impossible”). It should be obvious that the multiplier under the
Minnesota statutes would not be awarded on top of reinstatement; there is no
monetary award to be multiplied when reinstatement is determined proper. This
counsels against multiplying its equitable alternative.

       An award of front pay also is inherently speculative in length of time and when
considering possible mitigation by reason of other employment. It is based on
probabilities rather than actualities. This easily distinguishes it from damages which
have been actually incurred. Indeed, the mere fact that a front pay damage award is
discretionary makes it distinguishable from the award of back pay, which can be
readily determined within a degree of reasonable certainty. See Albemarle Paper Co.
v. Moody, 422 U.S. 405, 416 (1975) (noting that courts’ discretion to award back pay
is severely limited by a congressionally imposed presumption in favor of back pay
awards in Title VII cases).

       Although the decision to award front pay lies within the discretion of the
district court in order to make the plaintiff whole, our only real guidance as to what
the Minnesota courts might do under similar circumstances comes from the treatment
of front pay in the federal courts. As noted above, this circuit treats front pay as an
equitable remedy, not damages. In a related context, the Supreme Court has clearly
stated that front pay is not included in the measure of compensatory damages under
Title VII. See Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001)
(“[W]hen § 1981a is read as a whole, the better interpretation is that front pay is not

                                         -16-
within the meaning of compensatory damages . . . .”).4 Under these circumstances,
we find little justification for a judge to multiply this discretionary award under
Minnesota law without precedent or at least better guidance as to the nature of front
pay.

      On this basis we remand the award of front pay and request the magistrate
judge to amend his judgment by eliminating the multiplier as to that element of the
judgment.

D. Remittitur of the Award for Emotional Harm

      Gopher News argues the award of $165,000 for emotional distress is excessive
and lacks evidentiary support. Consequently, it argues the magistrate judge erred by
not remitting the award. We reject this argument.

       The court reviews a denial of a remittitur for “a manifest abuse of discretion.”
Norton v. Caremark, Inc., 20 F.3d 330, 340 (8th Cir. 1994). The test for setting aside
a verdict as excessive is whether the amount of the damages “shocks the conscience.”
Verhel v. Indep. Sch. Dist. No. 709, 359 N.W.2d 579, 591 (Minn. 1984). On appeal,
the appellate court must “recogniz[e] that the trial court has heard the evidence and
knows the community’s standards.” Norton, 20 F.3d at 340 (citing Am. Bus.
Interiors, Inc. v. Haworth, Inc. 798 F.2d 1135, 1146 (8th Cir. 1986)).

       Gopher News asserts the only evidence supporting an award for emotional
distress was Mathieu’s self-serving testimony. It notes there was no evidence from
any medical professional to the effect that Mathieu suffered mental anguish or that
he required treatment for such a condition. It urges this is insufficient evidence to


      4
      As noted, § 363.071 subd. 2 considers the multiplier to be used as a means to
award “compensatory damages.” See supra p.13.

                                         -17-
support the jury’s award or, alternatively, that the award is excessive based on
Mathieu’s vague and ill-defined assertions.

       Gopher News’ assertion that Mathieu was obliged to offer expert testimony to
justify an award for emotional distress misses the mark. In Kim v. Nash Finch Co.,
123 F.3d 1046 (8th Cir. 1997), we held that “[a] plaintiff’s own testimony, along with
the circumstances of a particular case, can suffice to sustain the plaintiff’s burden.”
Id. at 1065 (citing Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (6th Cir.
1996)). As the magistrate judge recognized, the import of this holding is that the
testimony of a medical expert is not a prerequisite for recovery for emotional harm.
At trial, Mathieu’s testimony in this regard apparently was effective. The magistrate
judge noted that Mathieu lost his job of thirty four years, was forced to reduce his
standard of living, and had become depressed. The magistrate judge noted that those
facts, presented through Mathieu’s testimony, were “more than sufficient to support
the jury’s emotional distress award.” Order (Nov. 14, 2000) at 23. He further held
“the award was not simply for emotional distress, but was made for a combination of
factors including emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life.” Id.

      In short, we cannot say our consciences are shocked by this award. Certainly,
another jury may have come out with a lower figure, but yet another may have
awarded a higher amount. We cannot say that the magistrate judge committed a
manifest abuse of discretion by enforcing the damages this jury awarded. We affirm.

E. Remittitur of the Back Pay Award

       Gopher News argues the jury’s award of back pay is excessive because
Mathieu refused to reasonably mitigate his damages. Consequently, it argues the
magistrate judge erred by not remitting the award. The court reviews a denial of a
remittitur for a manifest abuse of discretion. Norton, 20 F.3d at 340.

                                         -18-
       Gopher News asserts that, following elimination of Mathieu’s position, it
offered him three other positions and also asked him to name positions within the
company he thought he could handle. It argues these positions were “substantially
equivalent” to his former position, and the only reason Mathieu turned them down is
they were less highly compensated. Because lower pay alone is an insufficient reason
to turn down a substantially equivalent position, Gopher News argues Mathieu failed
to use reasonable diligence to mitigate his damages by turning them down.

        A party harmed by a discriminatory employment decision is subject to an
affirmative duty to mitigate his damages by reasonably seeking and accepting other
suitable employment. Anderson v. Hunter, Keith, Marshall & Co., Inc., 417 N.W.2d
619, 627 (Minn. 1988). Finding suitable employment does not require a party to “go
into another line of work, accept a demotion, or take a demeaning position . . . .”
Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982). A plaintiff’s duty is one of
reasonable diligence to seek out or not refuse a job that is substantially equivalent to
the one at issue. Parrish v. Immanuel Med. Ctr., 92 F.3d 727, 735 (8th Cir. 1996).
A plaintiff’s efforts to mitigate need not be successful but must represent an honest
effort to find substantially equivalent work. Brooks v. Woodline Motor Freight, Inc.,
852 F.2d 1061, 1065 (8th Cir. 1988).

        The first question raised by Gopher News’ argument is whether the positions
it allegedly offered represent substantially equivalent work Mathieu was required to
accept. We believe the magistrate judge did not abuse his discretion by finding the
answer to be no. The magistrate judge found that none of the positions offered by
Gopher News offered a comparable salary and none offered Mathieu health benefits.
According to the magistrate judge, “[a]ccepting a job paying significantly less and not
offering the same benefits is tantamount to a demotion and is demeaning to the person
seeking job loss.” Order (Nov. 14, 2000) at 26. While this may overstate the case
somewhat, it is clear that the positions offered by Gopher News were lower within the
company’s hierarchy than his former position as Manager of Customer Delivery

                                         -19-
Services. We believe any such position reasonably could be considered a demotion.
Moreover, as we noted above, the magistrate judge found that any return by Mathieu
to Gopher News would be marked by hostility sufficient to preclude reinstatement.
Clearly, employment marred by hostility is not substantially equivalent to an
otherwise similar position in an amiable environment. Therefore, we hold the
magistrate judge did not abuse his discretion by not considering the alternative
positions substantially equivalent.

       Of course, the burden to mitigate damages rests with the plaintiff, not the
defendant. Even though Gopher News’ proposed positions were not substantially
equivalent, that fact does not relieve Mathieu of his burden to exercise reasonable
diligence to find suitable employment with another employer. However, the evidence
presented at trial tended to show that Mathieu applied with eight to ten employers
during the first three months after he left Gopher News. For three months after that
Mathieu devoted six to eight hours per week looking for work. Mathieu offered
expert testimony that his job search was “very good.” Certainly, a party in Mathieu’s
position might have exerted more effort looking for employment. We may have
demanded more in the magistrate’s position. However, on the evidence presented at
trial we cannot say the magistrate committed a manifest abuse of discretion by finding
that Mathieu made an honest effort and exercised reasonable diligence to mitigate his
damages.

F. New Trial

       Finally, Gopher News asserts the jury’s verdict was irreparably tainted by
manifest passion and prejudice. It asserts, in light of the high award and lack of a
history of discriminatory acts, the jury must have been moved by passion and
prejudice rather than a careful weighing of the evidence. It urges a new trial is the
only effective remedy. We reject this argument as well.



                                        -20-
       A motion for a new trial should be granted only if the jury’s verdict was
“against the great weight of the evidence so as to constitute a miscarriage of justice.”
Denesha, 161 F.3d at 497 (citing Pulla, 72 F.3d at 656). As noted above, Gopher
News raises a number of close questions on appeal. Addressing several of those
questions, we noted that a reasonable mind could have come out differently.
However, the fact that reasonable minds could disagree on the proper verdict does not
show that the verdict the jury actually reached is against the great weight of the
evidence; indeed quite the contrary. Therefore, we cannot find the jury verdict to
constitute a miscarriage of justice.

      The order of the district court is reversed to the extent it applied MHRA
§ 363.071 subd. 2 to multiply the jury’s award of front pay. For this purpose, the case
is remanded to the district court for further action consistent with this opinion. The
judgment of the district court is affirmed in all other respects.

      A true copy.

             Attest:

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




                                         -21-
