                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2572
                        ___________________________

                                 Shaunta Hudson

                                       Plaintiff - Appellee

                                         v.

                        United Systems of Arkansas, Inc.

                                     Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                           Submitted: January 15, 2013
                              Filed: March 7, 2013
                                 ____________

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
                           ____________

MURPHY, Circuit Judge.

      Shaunta Hudson sued United Systems of Arkansas, Inc., for sex and disability
discrimination after she was terminated in June 2009. Hudson prevailed on both
claims at a jury trial and was awarded approximately $180,000 in damages, including
$100,000 for mental anguish. United Systems appeals the district court's1 denial of
its post trial motions for judgment as a matter of law and for remittitur of the mental
anguish damages. We affirm.

                                           I.

      On reviewing the denial of a motion for judgment as a matter of law, we look
at the facts in the light most favorable to the verdict and grant all reasonable
inferences in favor of the non moving party. Conseco Fin. Serv. Corp. v. N. Am.
Mortg. Co., 381 F.3d 811, 818 (8th Cir. 2004).

       In 2003 Hudson began working for United Systems, a small printing company
in Little Rock, Arkansas. She was initially hired as an accountant, but over time she
advanced and in 2008 she was promoted to controller. In this new position Hudson
was one of four executive employees supervised by the owner and president of United
Systems, Glenn Petkovsek. Hudson, who is African American, was the only woman
among the four executive employees.

       At the time Hudson was hired in 2003, she advised the company that she had
a serious medical condition which would require ongoing monitoring and treatment.
Complications from a partial hysterectomy had left her with a pelvic mass that swelled
progressively over time, causing severe discomfort and limiting her ability to sit or
stand. As a result she would have to take periodic short leaves to have the mass
surgically drained of fluid. This would involve a brief surgery to insert catheter tubes
and another to remove the tubes after swelling had abated. The draining process was
required every few months and resulted in a few days of absence from work.




      1
        The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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       Hudson underwent surgery to drain her pelvic mass several times during her
tenure at United Systems. Each time she followed the same procedure for notifying
the company that she would be taking leave. When she had a scheduled appointment,
she would tell her supervisor, fill out a form, and have the form signed in advance.
If she needed to take leave unexpectedly, she called the front desk and informed
whoever was answering the phone; she left a message if no one answered. Petkovsek
would then receive a message from the front desk notifying him that Hudson was to
be absent. This was the same type of leave notice given by all employees of United
Systems, including the other executive employees.

       The last time Hudson underwent surgery on her pelvic mass was in May 2009.
As usual she advised the company in advance that she had scheduled an appointment
for surgery. When she arrived for the surgery, however, Hudson learned that the mass
had swollen more than expected and would take longer than usual to drain. This time
the catheter tubes would need to stay in for days, possibly weeks. Although she
suffered some discomfort, Hudson was able to return to United Systems for the next
few weeks with reduced hours. The tubes were then removed in a surgery over
Memorial Day weekend. Hudson intended to return to work the following Tuesday
but could not when an infection developed following the surgery. Hudson was absent
from work on Tuesday, Wednesday, and Thursday that week. Each day, she called
in and spoke with someone at the front desk who was expected to relay the message
to Petkovsek. Hudson finally returned to work on Friday, June 4.

        On the morning Hudson returned to work, Petkovsek confronted her in her
office, demanding to know why she had not called him on his cell phone to inform
him personally that she would be out of the office that week. Hudson responded that
she had not known she was required to call him personally. An argument ensued, and
Petkovsek stood up and began pointing in Hudson's face. When Hudson rose,
Petkovsek ordered her to "sit down, little girl." She did not, and Petkovsek grew irate
and ordered her to "get out," repeating the phrase several times. Hudson understood
this to mean she was fired. She left the office and went home. When she returned the

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next day to gather her possessions, she found that the key code had been changed and
another worker told her she was not allowed in the building. Petkovsek called Hudson
a few days later and asked her to come to United Systems for a meeting with him. At
the meeting he explained that he felt Hudson was unable to perform her regular duties
due to her "health issues and personal issues," but that he would allow her to rejoin
the company if she took a position with reduced hours and pay. Hudson did not
accept Petkovsek's offer.

        After filing a complaint with the EEOC and receiving her right to sue, see 42
U.S.C. § 2000e-5 (2006), Hudson filed this action in the district court. Hudson
alleged claims of sex discrimination, sexual harassment, race discrimination, and
disability discrimination under federal law as well as parallel claims under Arkansas
law. Her sexual harassment and race discrimination claims were dismissed on
summary judgment, but her sex and disability discrimination claims proceeded to a
jury trial. Hudson prevailed on both remaining claims under federal and state law, and
the jury awarded her compensatory damages of $179,362. The award included
$100,000 for "other damages . . . such as mental anguish."

       United Systems filed post trial motions for judgment as a matter of law and for
remittitur of the mental anguish damages. The district court denied both motions and
entered judgment for Hudson. United Systems now appeals the denial of those
motions, arguing that there was insufficient evidence to support either the verdict or
the award of mental anguish damages.

                                         II.

      We review the denial of a motion for judgment as a matter of law de novo,
"applying the same standard as the district court." Emmenegger v. Bull Moose Tube
Co., 324 F.3d 616, 619 (8th Cir. 2003). The motion should be granted only if "a
reasonable jury would not have [had] a legally sufficient basis to find for [the non
moving] party." Fed. R. Civ. P. 50(a)(1). In this review, we are to take the facts in

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the light most favorable to Hudson and grant all reasonable inferences in her favor.
Conseco, 381 F.3d at 818. Although we take the record as a whole, we are to
"disregard all evidence favorable to the moving party that the jury [was] not required
to believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).
Thus, evidence that was favorable to United Systems should be credited only if it was
"uncontradicted and unimpeached," and only "to the extent that [it came] from
disinterested witnesses." Id. (quoting 9A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2259 (2d ed. 1995)).

       Hudson's sex discrimination claims under Title VII, 42 U.S.C. § 2000e-2, and
the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-107, are analyzed under the
same framework. See Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir.
2012). Where a plaintiff presents indirect evidence of discrimination, the Supreme
Court's opinion in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
"established an allocation of the burden of production and an order for the
presentation of proof." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). In
such cases the plaintiff's "presentation of a prima facie case creates a legal
presumption of unlawful discrimination." Ryther v. Kare 11, 108 F.3d 832, 836 (8th
Cir. 1997) (en banc). That presumption "places an obligation upon the employer to
produce evidence of a legitimate, nondiscriminatory reason for the plaintiff's
discharge." Id. This is a burden "of production, not persuasion," and it requires no
credibility assessment. Reeves, 530 U.S. at 142 (citing Hicks, 509 U.S. at 509). If an
employer carries its burden, "the legal presumption of unlawful discrimination 'drops
out of the picture.'" Ryther, 108 F.3d at 836 (quoting Hicks, 509 U.S. at 511)
(emphasis in original).

      The plaintiff then has the "'full and fair opportunity to demonstrate,' through
presentation of [her] own case and through cross-examination of the defendant's
witnesses" that she was discriminated against on the basis of her sex. Hicks, 509 U.S.
at 507–08 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
The trier of fact "proceeds to decide the ultimate question: whether plaintiff has

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proved 'that the defendant intentionally discriminated against [her]'" because of her
sex. Id. at 511 (quoting Burdine, 450 U.S. at 253). It is the plaintiff's burden to
"persuade the jury, from all the facts and circumstances, that the employment decision
was based upon intentional discrimination." Ryther, 108 F.3d at 837–38 (citing
Hicks, 509 U.S. at 511 n.4). We have further explained that "[i]ntentional
discrimination vel non is like any other ultimate question of fact: either the evidence
is sufficient to support a finding that the fact has been proven, or it is not." Rothmeier
v. Inv. Advisers, Inc., 85 F.3d 1328, 1335 (8th Cir. 1996).

        United Systems argues that it was entitled to judgment as a matter of law on
Hudson's sex discrimination claims because it articulated a legitimate,
nondiscriminatory reason for her termination which she failed to disprove. Although
the company denied at trial that Hudson had in fact been terminated, Petkovsek
testified that she had violated his "cell phone policy" which required all executive
employees to telephone him personally when calling in sick. Petkovsek also testified
that he had explained that policy to Hudson months before her termination. Finally,
Petkovsek testified that he had told Hudson to "get out" of her office because she
"copped an attitude" and he thought she was calling him a racist. On appeal, United
Systems contends that this testimony establishes that Hudson was fired for
"insubordination" rather than for her sex and that Petkovsek's account of the firing
was "essentially undisputed."

       We conclude that a legally sufficient basis existed for a reasonable jury to
determine that Hudson had made a showing that she had been discriminated against
by her employer. See Conseco, 381 F.3d at 818. Petkovsek's account did not go
"essentially undisputed," as he claims on appeal. Three current or former executive
employees testified that they had never heard of Petkovsek's alleged cell phone policy.
In response to Petkovsek's testimony that he had told Hudson about the cell phone
policy months before her termination, a portion of his pretrial deposition was
introduced in which he stated that he believed he first told her about it the day she was
fired. Hudson also produced evidence that Petkovsek "belittle[d] women employees

                                           -6-
all of the time," talked down to them, and called them "girl" or "little girl." Once he
told Hudson that she "g[a]ve good phone," which she took to be a reference to oral
sex. Finally, Hudson testified that immediately before telling her to "get out" of her
office during their confrontation, Petkovsek ordered her to "sit down, little girl." The
jury was not required to believe Petkovsek's contradicted and impeached testimony,
Reeves, 530 U.S. at 151, or to accept United Systems' proffered reasons for Hudson's
dismissal. Hudson's evidence met her burden of "persuad[ing] the jury, from all the
facts and circumstances," that her termination was "based upon intentional
discrimination." Ryther, 108 F.3d at 837–38 (citing Hicks, 509 U.S. at 511 n.4).
United Systems was thus not entitled to judgment as a matter of law.

       Since we conclude that the district court did not err in denying United Systems'
motion for judgment as a matter of law on Hudson's sex discrimination claims, we
need not address the denial of the motion on her disability discrimination claims. The
damages award was the same for each claim, and United Systems concedes that its
appeal of the disability discrimination claims is moot if the sex discrimination claims
are affirmed.

                                          III.

       We turn next to United Systems' motion for remittitur. Denial of a motion for
remittitur is reviewed for a manifest abuse of discretion. Sheriff v. Midwest Health
Partners, P.C., 619 F.3d 923, 931 (8th Cir. 2010). Remittitur is appropriate "only
when the verdict is so grossly excessive as to shock the conscience of the court." Id.
(citation omitted). A verdict is considered grossly excessive when "there is plain
injustice or a monstrous or shocking result." Eich v. Bd. of Regents for Cent. Mo.
State Univ., 350 F.3d 752, 763 (8th Cir. 2003) (internal quotation marks omitted).

      United Systems argues that the district court should have ordered remittitur
because the evidence of Hudson's mental anguish was insufficient to support an award
of $100,000. We disagree. United Systems largely relies on Forshee v. Waterloo

                                          -7-
Industries, Inc., 178 F.3d 527, 531 (8th Cir. 1999), but that case is not on point. In
Forshee, we were faced with the question of whether emotional distress damages
should have been submitted to the jury at all. Id. at 531. Here, United Systems did
not challenge the submission of mental anguish damages to the jury, but only filed a
motion for remittitur of the damages after the jury made its award. Remittitur is a
device for reviewing the amount of a damages award, not whether there was a basis
for any award at all. See, e.g., Eich, 350 F.3d at 763–64.

       Awards for pain and suffering are often "highly subjective and should be
committed to the sound discretion of the jury, especially when the jury is being asked
to determine injuries not easily calculated in economic terms." Frazier v. Iowa Beef
Processors, Inc., 200 F.3d 1190, 1193 (8th Cir. 2000). In previous cases, for example,
we have upheld jury awards of $200,000 for a sexual harassment claim; $50,000,
$100,000, and $125,000 for discrimination claims under Title VII; and $165,000 for
a disability discrimination claim under the Americans with Disabilities Act. Eich, 350
F.3d at 764 (collecting cases). Considering this precedent and the record made in this
case, we cannot conclude that the award of $100,000 to Hudson was monstrous,
shocking, or grossly excessive. We conclude that the district court did not manifestly
abuse its discretion in denying the motion for remittitur.

                                         IV.

      Because the district court did not err in denying judgment as a matter of law or
manifestly abuse its discretion in denying remittitur, the judgment is affirmed.

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