                      United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3031
                                    ___________

Gerald G. Salitros,                      *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Chrysler Corporation,                    *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: May 13, 2002

                                   Filed: October 3, 2002
                                    ___________

Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

       DaimlerChrysler Corporation, formerly known as Chrysler, appeals from the
judgment entered against it awarding Gerald Salitros $100,000 in punitive damages
and $445,516 in front pay on his claim that Chrysler retaliated against him for
exercising his rights under the Americans With Disabilities Act. Chrysler also
appeals the district court's award to Salitros of $128,268.52 in attorney's fees and
costs. Chrysler contends that the evidence was not sufficient to support the retaliation
claim or the award of punitive damages, and that the punitive damages award cannot
stand because the jury failed to award compensatory damages. Chrysler also contends
that the district court abused its discretion in awarding front pay and in fixing the
amount of the attorney's fee award. We affirm the district court's judgment and fee
award.

       We recite the facts in the light most favorable to the jury's verdict. Salitros
started work at the Chrysler Parts Distribution Center in Minneapolis in 1988, at the
age of 46. He worked as a stock-keeper, putting away the merchandise coming into
the warehouse. In February 1989, he injured his back in an accident at work in which
he fell eighteen and a half feet and landed on his back and neck on cement. When he
came back to work after the accident, he had difficulty finding work he could do at
the warehouse without aggravating his injuries. He had medical restrictions on the
amount of weight he could lift and the range and repetitiveness of movements he
could perform. He found that he could work in the Materials Return Area, putting
away miscellaneous parts that dealers returned to the warehouse, because the parts
were returned in small quantities, so the work was not as repetitive as other jobs he
had tried, and because not much bending, twisting, or climbing was required.

       For the next eight years, Salitros and Chrysler were in regular conflict over
what duties Salitros could perform without exceeding his medical restrictions. The
ongoing dispute about Salitros's restrictions was accompanied by personal animosity.
Salitros's union representative, Mark Stone, testified that he heard one of Chrysler's
supervisors refer to Salitros's grievances as "a big joke," and he heard them say,
"[S]hould we fuck with Gerry today or leave him alone?" The strain wore heavily on
Salitros, who was sometimes reduced to tears, and who looked "sad all the time" and
was "aging rapidly."

       On January 23, 1997, Mark Stone told Salitros that another worker, with
similar medical restrictions to Salitros's and more seniority, had bid on the Materials
Return Area job and that Chrysler was going to give the job to the other employee.
In fact, Richard Haynes, Chrysler's Parts Distribution Center manager, testified that
he had decided informally that Salitros ought to be able to keep the job, but the

                                         -2-
decision was not to be announced until the official date for reassignments. In the
meantime, Haynes planned to allow the other employee to try the job for four hours
on January 24, with Salitros assigned to other duties that day. When Salitros heard
from the union representative that the other employee was going to get the Materials
Return job and then was told at the warehouse office that the employee would be
doing the Materials Return job the next day, he became very upset. He called his
doctor and went by the warehouse office to announce that he wouldn't be in the next
day because he was going to see his doctor and file an EEOC charge. He did both.

       Three days later, on January 27, Salitros's doctor sent a fax to the union
benefits representative at Chrysler stating that Salitros was off work indefinitely.
Salitros also called the union benefits representative to make sure he delivered the fax
to Chrysler management. Chrysler received the fax, but took the position that it was
insufficient to satisfy the notice requirement in the Chrysler-UAW collective
bargaining agreement. The collective bargaining agreement provided that an
employee could be fired if he was absent for five days without notifying the plant in
accordance with the procedure set out in the local agreement. The local agreement
described the procedure for reporting absences as follows:

      It is expected and appreciated that employees who are absent from work
      call the warehouse phone number during the first two hours of their
      starting time on the day of their absence. Absences and tardiness may
      be reported by telephone or by a fellow employee, but this does not
      constitute an excused absence.

The union representative phoned Salitros on January 31 and told him that Chrysler
was taking the position that the fax was not sufficient notification and that Salitros
had to call personally and talk to a supervisor. While Salitros was on the phone with
the union representative, he heard Robert Schulte, the warehouse manager, come in
and speak to the representative, saying, "[T]hat son of a B, ah, filed another EEOC
charge." Salitros also heard Schulte say he was going to fire Salitros. Salitros

                                          -3-
testified that he did not feel capable of speaking to his supervisors at that point, and
he had been told earlier by the union benefits representative that fax notice was
telephone notice. He did not telephone the plant. Schulte sent him a letter that very
day terminating his employment for failure to give notice of his absence. The union
representative testified that at a later meeting, someone asked Haynes why he
wouldn't accept the fax as notice, and Haynes said: "[B]ecause I want to teach Gerry
a lesson."

       The union filed a grievance regarding the termination, and as a result of the
grievance, Chrysler reinstated Salitros on April 8, 1997, retroactive to January 24.
At the same time, Chrysler notified Salitros that it had placed him on medical leave.
Salitros never returned to work, but remained on medical leave through the date of
trial. His doctor testified that he was not able to return to work at Chrysler because
the stress he experienced there aggravated his physical symptoms. His vocational
rehabilitation expert opined that, other than employment with Chrysler, Salitros's job
opportunities would probably be only "intermittent and insubstantial." He received
disability payments, which were substantially less than he would have made had he
been able to work.

       Salitros brought this suit alleging Chrysler violated the Americans with
Disabilities Act, both by failing to make reasonable accommodation for Salitros's
disability and by retaliating against Salitros for asserting his rights under the Act. He
also alleged obstruction of his attempts to obtain workers' compensation benefits and
intentional and negligent infliction of emotional distress.1

      The case was tried to a jury, which found that Chrysler did not discriminate
against Salitros on the basis of his disability or fail to make reasonable


      1
      The obstruction of workers' compensation benefits and negligent infliction of
emotional distress claims were dismissed by Salitros.

                                          -4-
accommodation for his disability and that Chrysler did not intentionally inflict
emotional distress. The jury did, however, find that Chrysler had retaliated against
Salitros for exercising his rights under the Americans with Disabilities Act. The jury
found that Salitros had no lost wages or benefits through the date of the verdict, and
no other actual damages, but it awarded him $100,000 in punitive damages.

       The issue of front pay being reserved for the court, the district judge ruled that
Salitros was entitled to front pay of $445,416. He also awarded Salitros attorney's
fees and costs of $107,779.25 and $20,489.27, respectively.

                                            I.

                                            A.

      Chrysler first contends that there is insufficient evidence to support the jury's
verdict that it engaged in retaliation against Salitros for exercising his rights under the
Americans with Disabilities Act and that the district court should have granted its
motion for judgment as a matter of law.

       We review de novo the district court's denial of a motion for judgment as a
matter of law. Stauch v. City of Columbia Heights, 212 F.3d 425, 429 (8th Cir.
2000). Judgment as a matter of law is proper only when "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 evaluating the
sufficiency of the evidence, we must review all the evidence in the record, drawing
all reasonable inferences in favor of the nonmoving party and disregarding evidence
in favor of the moving party that the jury is not required to believe. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000). Put another way, we
must accept all the evidence favoring Salitros, but only the evidence favoring



                                           -5-
Chrysler that is uncontradicted and unimpeached and that comes from disinterested
witnesses. See id.

       To prove his claim for retaliation, Salitros had to show that he engaged in
activity protected under the Americans with Disabilities Act, that he suffered an
adverse employment action, and that there is a causal connection between the
protected activity and the adverse action. 42 U.S.C. § 12203 (1994); Schoffstall v.
Henderson, 223 F.3d 818, 826 (8th Cir. 2000).

        Chrysler first contends that Salitros did not produce evidence that he engaged
in a protected activity under the Americans with Disabilities Act. At trial, Salitros
testified:

      Q:   And did you file a charge with the EEOC?
      A:   Yes, I did.
      Q:   When did you file the charge?
      A:   I believe, ah, January 30th.

Chrysler did not object to this evidence, and the admission of it is not plain error.
Moreover, the EEOC charge was only one incident in a long history of assertions by
Salitros of his rights under the Americans with Disabilities Act, as our statement of
facts shows. There is evidence of protected activity.

       Next, Chrysler contends that there was no evidence the reason Chrysler fired
Salitros was because of his exercise of statutory rights and that there was unrebutted
evidence that the real reason for the firing was the inadequacy of Salitros's notice of
absence. Salitros testified that when he was on the telephone with Mark Stone on
January 31, he heard Robert Schulte speaking to Stone, and that Schulte said, "[T]hat
son of a B . . . filed another EEOC charge." Salitros's testimony was corroborated by
Stone, who said that Schulte walked into Stone's office with an EEOC charge in his
hand and made that statement. The jury could consider the use of this language in

                                         -6-
reporting the filing of the EEOC charge relevant to the motivation for firing Salitros
the same day. See Foster v. Time Warner Entm't Co., 250 F.3d 1189, 1195-96 (8th
Cir. 2001) (temporal proximity between assertion of rights and adverse employment
action significant in finding causation).

        Moreover, there was other evidence that Chrysler's managers were impatient
with Salitros's insistence that he could only do the Materials Return Area job. For
instance, according to Mark Stone, one supervisor called one of Salitros's grievances
concerning work outside his restrictions "a big joke." Even though the jury found
that Chrysler did not violate Salitros's right to reasonable accommodation, it could
consistently find that Chrysler retaliated against Salitros for his assertion of a good
faith, reasonable belief that he was entitled to greater accommodation than Chrysler
was affording him. See Buettner v. Arch Coal Sales Co., 216 F.3d 707, 714 (8th Cir.
2000) ("A plaintiff need not establish the conduct which she opposed was in fact
discriminatory but rather must demonstrate a good faith, reasonable belief that the
underlying challenged conduct violated the law."), cert. denied, 531 U.S. 1077
(2001).

       There was also abundant evidence from which the jury could have inferred that
Chrysler's reliance on inadequacy of the faxed notice was pretextual. First of all,
Chrysler had actual notice before firing Salitros that he would be absent from work
for medical reasons, since Salitros stopped by the warehouse office before leaving on
January 23 and announced that he wouldn't be in the next day and Chrysler
admittedly received Dr. Dorn's January 27 fax. Second, the contract with the union
local was at best ambiguous about whether an employee had to call in personally, and
the fax from Dr. Dorn arguably satisfied the contract requirements of telephonic
notification. Third, Stone reported that at the grievance meeting, Chrysler's manager
Richard Haynes said he wouldn't accept the fax notice, saying, "I want to teach Gerry
a lesson." The jury could infer that this expression of animus was more in keeping
with retaliation than with dissatisfaction over the form of Salitros's notice of absence.

                                          -7-
Finally, another employee testified that he had once had his wife call to report his
absence, rather than telephoning personally, and he had not been disciplined for doing
so. An employee can show pretext by showing that the employer meted out more
lenient treatment to similarly situated employees who were not in the protected class
or did not engage in protected activity. Erickson v. Farmland Indus., Inc., 271 F.3d
718, 727 (8th Cir. 2001).

       We conclude that there was sufficient evidence to support the verdict finding
retaliation.

                                          B.

       Chrysler also argues that there was no evidence to support the award of
punitive damages under the standard adopted for liability under 42 U.S.C. §
1981a(b)(1) in Kolstad v. American Dental Association, 527 U.S. 526 (1999).
Chrysler argues that it did not retaliate against Salitros, a question that the jury
decided against Chrysler on sufficient evidence. Further, it argues that if it did
retaliate, it did not do so with malice or reckless indifference to Salitros's federally
protected rights. Chrysler's manager Richard Haynes was quoted as saying he was
going to teach Salitros a lesson, in circumstances that support the inference that the
lesson to be learned was either not to file EEOC charges or not to protest work
assignments that he thought exceeded his medical restrictions. Haynes testified that
he had received training on the Americans With Disabilities Act. A jury could
conclude that Haynes acted in reckless indifference to whether he was violating
Salitros's federally protected rights. Haynes's malice may be imputed to Chrysler
because he was serving in a managerial capacity and acting in the scope of his
employment. Foster v. Time Warner Entm't Co, 250 F.3d 1189, 1196-97 (8th Cir.
2001) (quoting Kolstad, 527 U.S. at 543). Using the proper standard of review,
which requires us to take the evidence in the light most favorable to Salitros, there is
sufficient evidence to support the verdict holding Chrysler liable for punitive

                                          -8-
damages. Our reasoning also leads us to deny Chrysler's separate argument that the
district court erred in submitting punitive damages to the jury.



                                           II.

       Chrysler asks us to reverse the district court's award of front pay in the amount
of $445,516, representing seven years worth of wages and benefits, up to September
8, 2007, Salitros's anticipated retirement date. Both the district court's decision to
award front pay and its decision as to the amount of front pay are subject to review
only for abuse of discretion. Mathieu v. Gopher News Co., 273 F.3d 769, 778-79 (8th
Cir. 2001).

       As a threshold matter, Chrysler complains that the district court awarded front
pay without an evidentiary hearing, relying on documents that had never been entered
into evidence and on which Chrysler had no opportunity to cross examine any
witness. Salitros presented an expert witness at trial, who testified about how he
arrived at figures for lost wages and benefits in connection with back pay. Front pay
is decided by the court, not the jury, Bevan v. Honeywell, Inc., 118 F.3d 603, 613 (8th
Cir. 1997), and so there was no testimony at trial about front pay per se. After trial,
the district court ordered the parties to brief the question of whether Salitros was
entitled to front pay. The parties filed briefs simultaneously. Chrysler's brief argued
only that any award of front pay was inappropriate in light of the jury verdict and
Chrysler's reinstatement of Salitros, whereas Salitros asked for a specific amount of
front pay and also filed his attorney's affidavit and charts showing future lost wages
and benefits, up to Salitros's anticipated retirement date. The affidavit stated that the
front pay exhibits were prepared by the same firm that prepared the back pay exhibits
that were in evidence at trial. Indeed, the front pay summary exhibit was virtually
identical to the back pay exhibit in evidence, except for the dates covered and the
addition of projected pension and social security benefits in the front pay exhibit.

                                          -9-
According to Chrysler, Chrysler asked the judge's law clerk for permission to respond
to the affidavit, but was denied permission. Chrysler's attorney admitted at oral
argument that Chrysler did not file a motion in the district court asking for a hearing
on front pay. Without conducting a hearing, the district court entered an award for
front pay in the amount Salitros requested. Only after the ruling did Chrysler object
in the district court to the district court's reliance upon the charts, which had not been
admitted into evidence or subject to cross-examination.

       Even though front pay is an equitable remedy, see Excel Corp. v. Bosley, 165
F.3d 635, 639 (8th Cir. 1999), a court may not bypass the procedural protections of
our adversary system in resolving disputed adjudicative facts, Lussier v. Runyon, 50
F.3d 1103, 1113 & n. 13 (1st Cir. 1995), and a front pay award must be based on
evidence. See Davoll v. Webb, 194 F.3d 1116, 1143-45 (10th Cir. 1999). We are
satisfied that neither of these principles was transgressed in this case. Salitros's
expert testified at trial about his sources and the methodology he used in preparing
back pay exhibits. Chrysler had the opportunity to cross examine Salitros's expert
about the information and assumptions on which the back pay exhibits were based.
The front pay exhibits were obviously prepared using the same methodology, simply
extended for future years. After Salitros filed the affidavit with the exhibits attached,
Chrysler did not move to strike the exhibits or ask the court for an evidentiary
hearing, but waited to object until the district court had already ruled on the front pay
motion.

        In a similar case, the Seventh Circuit held the district court did not err in
granting front pay on the basis of documents that had been submitted to the court
after trial, but never introduced into evidence. Downes v. Volkswagen of America,
Inc., 41 F.3d 1132, 1141-43 & n.10 (7th Cir. 1994). The Seventh Circuit observed
that, since front pay is not submitted to the jury, it would be anomalous to introduce
evidence on that issue before the jury, but the district court based its front pay
calculation on expert trial testimony concerning back pay. In the district court, VW

                                          -10-
had not objected to the adequacy of the procedures afforded it to challenge the front
pay evidence:

      Downes raised the issue of front pay in the complaint and VW discussed
      the issue in its trial brief. If, after notice of this sort, VW nonetheless
      considered Downes' post-trial submission of front pay evidence to be
      prejudicial or a surprise, VW could have requested an evidentiary
      hearing or additional time to respond to Downes' post-trial motion. VW
      did neither. . . .

Id. at 1142. Similarly, in this case, Chrysler had the chance to cross examine
Salitros's expert on the methodology that was used on both the back pay and front pay
issues. Chrysler neither filed a motion for evidentiary hearing nor made any other
objection to the procedure used by the district court until after the district court had
ruled on Salitros's motion. We conclude that the district court did not err in deciding
the front pay issue on the record before it. Cf. Moysis v. DTG Datanet, 278 F.3d 819,
829 (8th Cir. 2002) (district court did not err in denying front pay without hearing
where plaintiff had failed to offer to district court either a reason why hearing was
necessary or a showing of data that would support award).

       Chrysler argues that the district court erred in awarding front pay when
Chrysler had already reinstated Salitros. Reinstatement is the preferred remedy for
unlawful employment discrimination, and front pay is the disfavored alternative,
available only when reinstatement is impracticable or impossible. Kucia v. Southeast
Ark. Cmty. Action Corp., 284 F.3d 944, 948-49 (8th Cir. 2002). Extreme animosity
between the employer and employee may make an amicable and productive work
relationship impossible and thus justify an award of front pay. Cox v. Dubuque Bank
& Trust Co., 163 F.3d 492, 498-99 (8th Cir. 1998). In this case, the district court
found that the reinstatement Chrysler offered Salitros was illusory, because Salitros
was never able to work after he was reinstated, and his inability to work resulted from
Chrysler's ill-treatment: "He remained on medical leave because of physically and


                                         -11-
psychologically damaging harassment experienced at the worksite." Salitros's income
while on medical leave showed a "sharp disparity" with his normal income. The court
further held that Salitros could not be expected to return to Chrysler in the future.
"Given the animosity between the parties, an order reinstating plaintiff to defendant's
workplace would be antithetical to his health and is entirely impracticable. . . ."
Accordingly, the court held an award of front pay was necessary. We cannot say that
this reasoning reveals an abuse of discretion.

      Chrysler also argues that Salitros cannot receive front pay for any period in
which he was unable to work. Chrysler's argument depends on its assertion that it did
nothing to cause Salitros to go on medical leave. This assertion is contrary to
findings of the district court:

      The jury's finding of retaliation supports the Court's conclusion that it
      was defendant's retaliatory acts which drove plaintiff to sick leave.
      Defendant cannot use the sick leave, engendered by its own conduct, to
      deny plaintiff front pay. If defendant were allowed to profit from its
      illegal retaliation, the result would directly contradict the ADA's
      purpose.

The district court found that Salitros was not physically unable to work, but
psychologically unable to return to a hostile workplace. These findings are not
clearly erroneous and they distinguish Salitros's case from the principle Chrysler
relies on, that "an employer who has discriminated need not reimburse the plaintiff
for salary loss attributable to the plaintiff and unrelated to the employment
discrimination." Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1101 (3d Cir.
1995) (internal quotation marks omitted)(emphasis added).

      Chrysler argues that the award of front pay is contrary to the jury's verdict
exonerating Chrysler on Salitros's disability discrimination and intentional infliction
of emotional distress claims. In fashioning equitable relief, the district court may take

                                          -12-
into account facts that were not determined by the jury, but it may not base its
decision on factual findings that conflict with the jury's findings. Gibson v. Mohawk
Rubber Co., 695 F.2d 1093, 1101 (8th Cir. 1982). The district court's finding of
animosity between the parties was not based on disability discrimination on
Chrysler's part, but on retaliation. Therefore, the district court's reasoning did not
conflict with the verdict for Chrysler on Salitros's discrimination claim. The jury's
instructions on the intentional infliction of emotional distress claim required them to
find that "the defendant's conduct was so extreme and outrageous that it passed the
boundaries of decency and is utterly intolerable in the civilized community." No such
finding was required to justify front pay. Again, no conflict between verdict and
equitable award appears.

       Chrysler also argues that the award of front pay conflicts with the jury's finding
that Salitros suffered no lost wages and benefits. Determination of front pay is
entrusted to the district court's discretion, Excel Corp. v. Bosley, 165 F.3d 635, 639
(8th Cir. 1999), and the answer to whether the employee should have been expected
to return to work may vary according to the time period involved. See id. at 640. The
district court found that animosity between Chrysler and Salitros was such that
Salitros could not be expected to return to Chrysler after trial. The court found that
Salitros intended to work until the normal retirement age. The court stated: "Based
on the jury verdict of retaliation, and the Court's own conclusion of sufficient animus
to preclude reinstatement, the Court finds an award of front pay is warranted." We
cannot say the court abused its discretion in so finding.

      Chrysler also attacks the amount of front pay awarded by the district court.
First, Chrysler contends that the award should be reduced by the workers'
compensation, social security payments and disability payments that Salitros
receives. Our circuit has treated the reduction of pay awards by other benefits as a
legal question, rather than as something entrusted to the district court's discretion.
See Arneson v. Callahan, 128 F.3d 1243, 1247-48 (8th Cir. 1997); Doyne v. Union

                                          -13-
Elec. Co., 953 F.2d 447, 451 (8th Cir. 1992). But see Lussier v. Runyon, 50 F.3d
1103, 1109-10 (1st Cir. 1995) (whether to deduct collateral source payments within
district court's discretion). We therefore review de novo the district court's treatment
of this issue.

      The district court held, "Defendant cannot use the sick leave, engendered by
its own conduct, to deny plaintiff front pay." Under the collateral source rule, an
employer is entitled to no credit for moneys paid to the injured employee by third
parties. Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1112-14 (8th Cir.
1994). Workers' compensation benefits are considered a collateral source, Moysis
v. DTG Datanet, 278 F.3d 819, 828 (8th Cir. 2002), as are unemployment insurance
and social security payments. See Gaworski, 17 F.3d at 1112. Disability insurance
payments may be collateral source payments, depending on circumstances, including
whether the disability resulted from the employer's conduct. See Arneson v.
Callahan, 128 F.3d 1243, 1248 & n.8 (8th Cir. 1997); see generally Hamlin v.
Charter Township of Flint, 165 F.3d 426, 435-36 (6th Cir. 1999) (using multifactor
test to determine whether "disability pension" is "collateral"). The district court
found that Salitros's medical leave was made necessary by the "physically and
psychologically damaging harassment experienced at the worksite." The district
court did not err in fixing the amount of the front-pay award.

      Chrysler also contends that the front pay award improperly included
compensation for benefits that Salitros already receives as a Chrysler employee on
disability. However, Salitros's expert at trial indicated that his account of damages
did not include benefits that Salitros was receiving while on disability. The chart on
which the court based the front pay award is evidently based on the same
methodology. This argument has no merit.




                                         -14-
                                         III.

       Chrysler attacks the jury's award of punitive damages on several grounds.
First, Chrysler contends that punitive damages could not be awarded at all because
the jury did not award compensatory damages.

     The federal courts are split several ways over the issue of whether federal law
generally, and 42 U.S.C. § 1981a specifically, allow an award of punitive damages
without a supporting award of actual or nominal damages.

      The most austere position is that taken by the Fourth Circuit in a Fair Housing
Act case, that an award of punitives cannot stand without compensatory damages.
People Helpers Found. v. Richmond, 12 F.3d 1321, 1327 (4th Cir. 1993). The court
summarized the common law rule as holding that "punitive damages are not
appropriate in cases where a plaintiff has failed to demonstrate actionable harm." Id.
The court held that the wide currency of the common-law rule made it reasonable to
apply the rule in federal cases in which the statute was silent on the subject: "[W]e
are persuaded by the law of a majority of the states, the reasoning behind the law,
and the federal case law applying the rule in the absence of statutory language to the
contrary that punitive damages are not recoverable in this circumstance." Id. Our
Circuit long ago rejected the notion that compensatory damages, as opposed to
nominal damages, were prerequisite to an award of punitives. Goodwin v. Circuit
Court of St. Louis County, 729 F.2d 541, 548 (8th Cir. 1984).

      Other courts have held that only where there has been a violation of
constitutional rights, may punitive damages be awarded without an award of
compensatory or nominal damages. In Louisiana Acorn Fair Housing v. LeBlanc,
211 F.3d 298, 303 (5th Cir. 2000), cert. denied, 532 U.S. 904 (2001), this rule led to
reversal of an award of punitive damages in a Fair Housing Act case, because a
violation of the Fair Housing Act did not amount to a constitutional violation. In

                                        -15-
Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000), cert. denied, 531 U.S. 1069
(2001), the Third Circuit articulated the same rule, but reached the opposite result,
reversing the district court for failing to submit punitives in a Fair Housing Act case
in which no actual damages were awarded. See Searles v. Van Bebber, 251 F.3d
869, 880-81 (10th Cir. 2001) ("We note that, as a general rule, punitive damages may
be recovered for constitutional violations without a showing of compensable
injury."), cert. denied, 122 S. Ct. 2356 (2002). We have, in fact, held that liability
for nominal damages follows automatically from a finding of certain constitutional
violations, Risdal v. Halford, 209 F.3d 1071, 1072 (8th Cir. 2000), and this would
support a rule permitting punitive damages upon the finding of such violations. See
Goodwin, 729 F.2d at 548 (punitive damages permitted in case where nominal, but
not actual, damages awarded). However, no one has argued that retaliation for
activity protected under the ADA is a constitutional violation,2 and so this rule would
not be applicable in our case.

      In the First and Eleventh Circuits, punitive damages may be awarded under
section 1981a if there was an award of backpay, but no compensatory or nominal
damages. EEOC v. W & O, Inc., 213 F.3d 600, 615 (11th Cir. 2000); Provencher v.
CVS Pharmacy, 145 F.3d 5, 12 (1st Cir. 1998). The First Circuit cited the reasoning
of the Seventh Circuit in an earlier case that back pay is compensatory in function,
and in fact represents the most direct economic loss in an employment discrimination
case. Provencher, 145 F.3d at 11-12 (citing Henessy v. Penril Datacomm Networks,
Inc., 69 F.3d 1344, 1352 (7th Cir. 1995)). Therefore, the First Circuit held that an
award of backpay should be sufficient to support an accompanying award of punitive


      2
        In Hicks v. Brown Group, Inc., 902 F.2d 630, 653 (8th Cir. 1990), we went
further and held that nominal damages follow automatically from the violation of any
"absolute right" and that intentional racial discrimination in employment was such an
absolute right. Hicks was vacated by the Supreme Court on a different ground.
Brown Group, Inc. v. Hicks, 499 U.S. 914 (1991). A vacated decision is deprived of
its precedential effect. See Landrum v. Moats, 576 F.2d 1320, 1324 (8th Cir. 1978).

                                        -16-
damages. Id. However, the First Circuit has held that without compensatory or
nominal damages or backpay, an award of punitives cannot stand. Kerr-Selgas v.
American Airlines, Inc., 69 F.3d 1205, 1214-15 (1st Cir. 1995). The Eleventh
Circuit reserved this question. W & O, 213 F.3d at 615 n.5.

      The most liberal position is that section 1981a does not require any other sort
of damages to be awarded as a prerequisite to punitive damages. The Seventh
Circuit held that section 1981a permits award of punitive damages without
compensatory damages or back pay, reasoning from "federal common law" in section
1983 cases. Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir.
1998). The Second Circuit also held that an award of actual or nominal damages is
not a prerequisite to punitive damages, citing the plain language of section 1981a,
which does not mention such a prerequisite, and the lack of a uniform common law
rule on the subject. Cush-Crawford v. Adchem Corp., 271 F.3d 352, 357-59 (2d Cir.
2001).

      We need not decide whether an award of punitives could stand without any
award of compensatory or nominal damages, because the award of front pay in this
case serves the purpose of compensating Salitros for economic losses resulting from
the retaliation. We agree with the First and Eleventh Circuits that the common law
policy prohibiting punitive damages where the plaintiff has not shown any harm is
not implicated where the plaintiff has shown wage loss. See Provencher, 145 F.3d
at 12; W & O, 213 F.3d at 615. Therefore, we conclude that the award of punitive
damages was proper.

      Chrysler further argues that, if punitive damages can be awarded at all without
an award of compensatory damages, then the $100,000 award in this case did not
bear a rational relationship to the jury's finding of no actual damages. Therefore,
Chrysler contends, the punitive award was unconstitutional under the principles of
Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 18 (1991). See also BMW

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of North America, Inc. v. Gore, 517 U.S. 559, 580-83 (1996) (requiring a
"reasonable relationship" between actual and punitive damages). We review de novo
the district court's determination of the constitutionality of an award of punitive
damages. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436
(2001). Lengthy discussion of this point is rendered unnecessary by our earlier
discussion, for rather than comparing the $100,000 punitive damages award to the
jury's zero compensatory damages award, by the same reasoning we employed
above, we conclude that we more properly compare the amount of punitives to the
$445,516 front-pay award. There is no tenable argument that punitives of less than
one-fourth of the front pay are excessive in relation to Salitros's economic losses.
For the same reason, we deny Chrysler's contention that the district court abused its
discretion in denying remittitur. See Duty v. Norton-Alcoa Proppants, 293 F.3d 481,
496 (8th Cir. 2002) (denial of remittitur reviewed for abuse of discretion).

                                         IV.

       In something of a scattershot approach, Chrysler raises various evidentiary
issues, which we review only for abuse of discretion, Williams v. City of Kansas
City, Mo., 223 F.3d 749, 754 (8th Cir. 2000), and as to which no abuse of discretion
appears. In addition, Chrysler contends that the district court should have granted
it a new trial because it found a document in its files that had apparently always been
there, but which it did not discover until after the jury's verdict. No abuse of
discretion appears in the district court's denial of a new trial on this ground. See
Stauch v. City of Columbia Heights, 212 F.3d 425 (8th Cir. 2000) (new trial ruling
reviewed for abuse of discretion); Moysis v. DTG Datanet, 278 F.3d 819, 829 n.3
(8th Cir. 2002) (Evidence which could and should have been presented at trial
cannot be presented in Fed. R. Civ. P. 59(e) motion). Finally, Chrysler contends that
the court's retaliation instruction was erroneous because it stated that damages were
an element of a retaliation claim. This instruction is more favorable to Chrysler than
the instruction Chrysler submitted. There was no prejudice to Chrysler's substantial

                                        -18-
rights from giving the one instruction rather than the other. See Phillips v. Collings,
256 F.3d 843, 851 (8th Cir. 2001) (instructional error reversible only if prejudicial
to substantial rights).

                                          V.

      Chrysler appeals from the award of attorney's fees and costs to Salitros,
contending that the district court should not have held Salitros to be the prevailing
party, that his attorney's fees should have been reduced to account for partial success,
and that both fees and costs should have been reduced because of inadequate record-
keeping. The Americans with Disabilities Act permits the court to award fees and
costs to the prevailing party. 42 U.S.C. § 12205 (1994). The fees and costs motion
was referred to a magistrate judge, who considered all the arguments that Chrysler
makes before us and who gave reasoned and persuasive explanations for the amount
of fees he arrived at. The district court reviewed the magistrate judge's
recommendation de novo and adopted it. We review fee awards for abuse of
discretion, and we review de novo the determination of whether a litigant is a
prevailing party. Jenkins v. Missouri, 127 F.3d 709, 713-14 (8th Cir. 1997).

      Chrysler contends that Salitros was not the prevailing party, but this clearly is
not the case, since Salitros received relief on the merits of his retaliation claim. See
Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health and Human Res.,
532 U.S. 598, 603-04 (2001). Chrysler also argues that the award should be reduced
to account for the disability discrimination and other claims on which Salitros did
not prevail. The magistrate judge considered this argument and concluded that the
claims shared a common core of facts and therefore the fees should not be reduced
for failure to prevail on every theory. Accepting this recommendation was not an
abuse of the district court's discretion. See Wal-Mart Stores, Inc. v. Barton, 223 F.3d
770, 773 (8th Cir. 2000). Finally, Chrysler contends that Salitros's attorney did not
keep proper records of her time, but the magistrate judge's recommendation took this

                                         -19-
deficiency into account in setting the hourly rate. No abuse of discretion appears in
the award of fees and costs.

     We affirm the judgment of the district court and the award of fees and costs
imposed.

     A true copy.

            Attest:

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




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