                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                   __________

                             No. 97-4122/98-1081EM

                                   __________

Rockwood Bank,                        *
                                      *
  Defendant-Appellant/Cross-Appellee, *
                                      * Appeal from the United States
       v.                             * District Court for the Eastern
                                      * District of Missouri
M. Michael Gaia,                      *
                                      *
Plaintiff-Appellee/Cross-Appellant.   *

                                   ___________

                         Submitted: November 16, 1998
                            Filed: March 15, 1999

                                   ___________

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON1, District
Judge.
                           ___________
DAWSON, District Judge.

       Rockwood Bank appeals following a judgment in a defamation action brought
by a bank employee after the president of the bank made certain statements about the
employee to bank examiners during routine bank examinations. The employee, M.


      1
       The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas, sitting by designation.
Michael Gaia, who had been demoted by the bank, sought other employment and was
listed as the proposed president within the charter application forms for a new bank.
Because of the comments made by the president that were contained within the
reports of bank examiners, the Missouri Commissioner of Finance refused to grant
the new bank charter as long as Gaia was listed as president. Gaia filed suit for age
discrimination and defamation; a jury found for the bank on the discrimination claim
but awarded Gaia actual and punitive damages on the slander claim.

       For reversal, Rockwood Bank contends that because of the very nature of bank
examinations, its communications with bank examiners are protected by either an
absolute or qualified privilege entitling the bank to immunity from civil liability.
Rockwood Bank also contends that the communications were not defamatory. For
reversal on the cross-appeal, Gaia contends that the district court’s instructions to the
jury on the issues of illegal age discrimination were not correct statements of the law.
We reject the contentions of both and AFFIRM the decision of the district court.

      Jurisdiction of this court is proper under the provisions of 28 U.S.C. §§
636(c)(3), 1291 and 1294.

I. Factual Background
       In March, 1992, the Board of Directors of Rockwood Bank voted to hire Gaia
as executive vice president of the bank over the objections of the bank president. At
the time Gaia was hired, he was fifty-five years old and had twenty-one years of
experience as a bank officer and fifteen of experience as a bank president. Gaia was
considerably older and more experienced than the acting president of Rockwood
Bank. According to Gaia, the bank president told him that he had wanted to hire
someone younger and less experienced than Gaia because such a person would have
been easier to train. From the beginning of their professional relationship, tensions
existed between the bank president and Gaia, with the bank president continually
criticizing and expressing dissatisfaction with Gaia’s performance. The record

                                          -2-
contains evidence that the bank president did not provide Gaia with a specific job
description or duties and responsibilities; that he instructed Gaia to perform clerical
tasks not typically assigned to senior level executives and failed to provide him with
training; and that he directed Gaia not to perform other clerical tasks which Gaia
deemed necessary to process customers’ business. In addition, Gaia’s personnel file
was filled with memoranda and notes regarding his performance and his file was
shown to be much more detailed and extensive than the file of any other bank
employee. Despite the frequent fault-finding by the bank president, Rockwood’s
Board of Directors appeared satisfied with Gaia’s performance and granted him salary
and benefit increases and stock options every year that Gaia served as executive vice-
president.

       In September 1994, the bank president was able to convince the Board that
Gaia was not fulfilling his duties in an acceptable manner. Despite Gaia’s attempts
to defend himself and persuade the Board that he was being wrongly disparaged by
the bank president, the Board gave Gaia an ultimatum either to accept a demotion or
be terminated. Gaia agreed to the demotion. However, the working relationship
between Gaia and the bank president remained strained and Gaia eventually came to
believe that his days at Rockwood Bank were numbered. In the summer of 1995,
Gaia began looking for other employment. During this time, Gaia was approached
by a group of investors who were organizing a new bank about the possibility of
naming Gaia as the president of the new bank. In due course, Gaia was listed as the
proposed president of the new bank seeking to organize under a state banking
charter.

      At or about the time of Gaia's demotion, routine bank examinations were
conducted by the FDIC and Missouri Division of Finance. During the course of these
examinations, the bank examiners discussed with Rockwood’s president the job
performance of Gaia and other employees. While the bank president’s comments
were contained within the confidential section of both reports, they were not included

                                         -3-
in the reports of examination made available to the bank, its board, the president, or
Gaia. The comments were contained in the full reports of both examinations, and it
was the full reports that the Missouri Bank Commission reviewed in connection with
the application for the new bank charter which proposed Gaia as its president.

     The language concerning Gaia in the report of the FDIC examination that was
conducted in June 1995 was as follows, to-wit:

      The minutes of a Personnel Committee meeting on May 25, 1995,
      disclosed that President Lunt was recommending that Vice President
      Mike Gaia be fired. When questioned, President Lunt stated that Mr.
      Gia [sic] had not lived up to expectations since his employment. Mr.
      Lunt felt he would have the Board's support in this matter and hoped to
      be able to interview shortly for an Executive Officer who would
      effectively take Mr. Gaia's place.

     The language within the report of the Missouri Division of Finance
examination conducted in January 1995 was similar and was as follows, to-wit:

      Mike Gaia has been demoted from Executive Vice President to Vice
      President. His primary responsibility is now business development. His
      efforts to complete assigned tasks such as policy revisions and
      implementation of the loan grading system have failed. President Lunt
      appeared very displeased with Mr. Gaia's weak performance and stated
      that he has an indefinite probationary period to produce results. In
      addition, President Lunt stated that he has created much animosity
      among the Board of Directors.

       Based largely upon these confidential comments, the Missouri Bank
Commission reached a decision and advised the directors of the newly formed bank
that their charter would be approved only if Gaia was not president. Gaia was then
offered a lesser position with the new bank. On or about December 8, 1995, Gaia left
his employment at Rockwood Bank and a few weeks later took the lesser position


                                         -4-
offered at the new bank. Gaia contends that Rockwood’s president fired him without
the approval of the Board of Directors, while Rockwood contends that Gaia resigned
to accept the offer of other employment.

       The litigation by Gaia was filed following the commencement of his
employment at the newly formed bank. With regard to the claim of age
discrimination, the issues of pretext concerning the bank’s proffered explanation for
Gaia’s demotion and whether Gaia voluntarily resigned or was discharged from his
position at Rockwood Bank were thoroughly litigated. At the close of evidence, the
district court gave the following instruction to the jury:

      Plaintiff must prove by a preponderance of the evidence that his age was
      the determining factor in the Defendant’s decisions to demote and
      discharge him. Age is the determining factor if Plaintiff would not have
      been demoted and discharged except for his age.

The jury returned a verdict in favor of Rockwood Bank on Gaia’s age discrimination
claims and in favor of Gaia on the defamation claim. The jury awarded Gaia
$200,000 in actual damages and $75,000 in punitive damages upon making a finding
of actual malice.

II.     Discussion
        A.      Absolute or Qualified Immunity from Liability
        The first issue the Court shall address is whether any privilege exists that
would shield a bank, its officers or board members from civil liability for allegedly
defamatory comments made to bank examiners during the course of a routine
examination of the bank. Rockwood Bank contends that the district court erred when
it failed to recognize that the bank is entitled to immunity from liability for statements
made to bank examiners in the course of routine bank examinations because those
statements are protected by either an absolute or qualified privilege. This is a case

                                           -5-
of first impression, and amicus briefs have been filed by the Missouri Commissioner
of Finance, the Missouri Bankers Association, and the Federal Deposit Insurance
Corporation, who argue that public policy must allow full and complete comment and
disclosure in connection with any bank examination without fear of litigation.

      Although there are some federal implications because of the involvement of the
Federal Deposit Insurance Corporation (FDIC), Missouri law governs Gaia’s slander
claim against Rockwood as well as the claim of absolute or qualified privilege for the
statements made by Rockwood’s president to the Missouri Division of Finance. In
re IBP Confidential Bus. Documents Litigation, 797 F.2d 632, 639 (8th Cir.
1986)(citing Webster v. Sun Co., 790 F.2d 157, 160 (D.C.Cir. 1986)). Whether a
statement is absolutely privileged is a question of law which we review de novo.
Scott Fetzer Company v. Williamson, 101 F.3d 549, 553 (8th Cir. 1996); Wright v.
Over-The-Road & City Transfer Drivers, Helpers, Dockmen and Warehousemen, 945
S.W.2d 481, 490 (Mo.App. 1997).

       Missouri courts adhere to the common law principle that "statements made
during the proceedings of a judicial or quasi-judicial body are absolutely privileged
if they are relevant to the issues before the body." Remington v. Wal-Mart Stores,
Inc., 817 S.W.2d 571, 574 (Mo.App. 1991)(citations omitted); see also Hester v.
Barnett, 723 S.W.2d 544 (Mo.App. 1987); Pulliam v. Bond, 406 S.W.2d 635 (Mo.
1966). Absolute immunity for participants in a judicial or quasi-judicial process is
"necessary to assure that judges, advocates, and witnesses can perform their
respective functions without harassment or intimidation." Butz v. Economou, 438
U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978). The question, therefore,
becomes whether routine bank examinations may be considered judicial or quasi-
judicial proceedings entitling participants to absolute immunity. In reaching a
determination of this issue, it is appropriate to inquire into the characteristics of the
particular examinations that took place at Rockwood Bank to see if they were typical
of the judicial process in order to warrant absolute immunity for those who took part

                                          -6-
in them.

       In determining if a particular proceeding is quasi-judicial in nature, Missouri
courts are guided by whether the administrative agency exercised "such traditional
judicial powers as the conducting of hearings at which witnesses may be summoned
and examined, documents subpoenaed, and judgments handed down . . ." Wright, Id.
at 491, quoting Remington, Id. at 574 (citations omitted). We have previously held
that the term "quasi judicial" applies "where the function of the administrative body
under consideration involves the exercise of discretion in the application of legal
principles to varying factual situations and requires notice and hearing." M.C. Mock
v. Chicago, Rock Island and Pacific Railroad Co., 454 F.2d 131,134 (8th Cir. 1972).
 In Butz, the Supreme Court noted that "the safeguards built into the judicial process
tend to reduce the need for private damages actions as a means of unconstitutional
conduct. . . .Advocates are restrained not only by their professional obligations, but
by the knowledge that their assertions will be contested by their adversaries in open
court. Jurors are carefully screened to remove all possibility of bias. Witnesses are,
of course, subject to the rigors of cross-examination and the penalty of perjury." Butz,
438 U.S. at 512, 98 S.Ct. at 2913.

       While Missouri case law recognizes the existence of absolute privilege in
some administrative proceedings, it has not extended that privilege as far as the
Appellant now seeks. In Li, et al. v. Metropolitan Life Insurance Co., Inc., 955
S.W.2d 799 (Mo. App. 1997), it was held that the allegedly defamatory contents of
a letter written by an insurance agent and provided to the Missouri Department of
Insurance pursuant to an inquiry into specific allegations of misrepresentation by the
agent was protected by absolute privilege. The court reasoned that the inquiry by the
Department constituted a quasi-judicial function because the Department was
investigating specific complaints about the agent that were brought by the appellants
themselves.



                                          -7-
       We recognize that both the FDIC and the Missouri Division of Finance possess
quasi-judicial powers in that they may administer oaths, compel the attendance of
witnesses and the production of records and other documents.2 In addition, they both
have statutory authority to issue cease and desist orders.3 It is also widely accepted
that the reports prepared by the examiners are protected by law from disclosure.4
However, we are of the opinion that the routine bank examinations conducted at
Rockwood Bank in 1995 should not be accorded status as quasi-judicial proceedings.
 While the examinations were conducted according to law, they were not inquiries
instituted after a determination that the bank may have been engaging in unsafe or
unsound practices. Nor were the examinations commenced pursuant to specific
complaints or requests for investigation. There is no evidence that either of the bank
regulatory agencies was even contemplating the initiation of a quasi-judicial

      2
       Mo.Rev.Stat. §§ 361.130, 160 (1994); 12 U.S.C. §§ 1818(n), 1820(c); 12
C.F.R. §§ 308.144 (1998) et seq.
      3
          Mo.Rev.Stat. § 361.260 (1994); 12 U.S.C. § 1818(b) & (c).
      4
         See Mo.Rev.Stat. § 361.070 (1994). The bank examination privilege is a
qualified privilege which shields from discovery agency opinions or
recommendations, and it is discussed in some detail within In Re Subpoena Served
Upon the Comptroller of the Currency, 967 F.2d 630 (D.C. Cir. 1992). In that case,
the court stated:
        Because bank supervision is relatively informal and more or less
        continuous, so too must be the flow of communication between the bank
        and the regulatory agency. Bank management must be open and
        forthcoming in response to the inquiries of bank examiners, and the
        examiners must in turn be frank in expressing their concerns about the
        bank. These conditions simply could not be met as well if
        communications between the bank and its regulators were not
        privileged. . .
               Nonetheless, the discovery of bank examination information is not
        absolutely precluded.
Id. at 634 (Citations omitted). See also, In Re Mid Atlantic Corporation Shareholder
Litigation, 1994 WL 750664, 2 (D.C. Cir. 1994).

                                         -8-
proceeding against the bank. As such, the routine examinations of Rockwood Bank
by the Missouri Division of Finance and the FDIC may not even be considered
preliminary steps to quasi-judicial proceedings. We also think it is important to note
that the safeguards usually associated with judicial proceedings were not present
during the examinations: no hearing was noticed or held; the persons whose
comments were solicited were not under oath; and there was no opportunity for cross-
examination. We hold that a routine bank examination does not qualify as a quasi-
judicial proceeding and that statements made in the course of such examinations are
not protected by absolute privilege.5

      We do not believe that, by declining to extend absolute immunity to those who
provide statements to bank regulators during routine examinations, the free flow of
information necessary for effective bank regulation will be unduly hindered. While
the public policy concerns raised by the appellant and others are well taken and
important, they are suitably met by affording qualified immunity to the participants.

      In Missouri, qualified immunity may be available for a person who makes a
statement subject to a duty to someone who has a corresponding duty. Rice v.
Hodapp, 919 S.W.2d 240, 244 (Mo. 1996); Carter v. Willert Home Products, 714


      5
         Following oral argument in this matter, the Appellant Rockwood Bank
submitted to the Clerk an additional citation, as is permitted by Rule 28(j) of the
Federal Rules of Appellate Procedure. Rockwood Bank contends that 31 USC
§ 5318(g)(3) affords absolute immunity to the bank in this case. Section 5318(g)(3)
is included within the "money-laundering" statutes and is designed to protect the
bank, its board of directors, officers, employees, or agents, from civil liability in
connection with the disclosure of information regarding "any suspicious transaction
relevant to a possible violation of law or regulation." The sole basis for the
defamation claim was the language contained within the examination reports. We
do not find that the record supports the argument that the bank president’s statements
were intended to disclose a suspicious transaction relevant to a possible illegality.
Therefore, this section is of no assistance to the bank under these circumstances.

                                         -9-
S.W.2d 506, 513 (Mo. 1986). Qualified immunity will protect the person from
liability for making false or defamatory statements if it can be shown that the
comments were made without actual malice. Actual malice means "that the
statements were made with knowledge that they were false or with reckless disregard
for whether they were true or false at a time when defendant had serious doubts as to
whether they were true." Carter, 714 S.W.2d at 512. With this definition in mind,
those providing information to bank regulators only have a duty to refrain from
making statements that are known to be false or with reckless disregard for their
truthfulness. We find that, under these circumstances, qualified immunity will
facilitate the free flow of communications between bank regulators and those
participating in routine examinations and at the same time shield individuals from
malicious defamation.

       Rockwood Bank contends that the bank president had a legal obligation to fully
cooperate and disclose information to the bank examiners and, therefore, those
communications would be subject to a qualified immunity for claims of defamation,
citing Luan v. Union Electric Co., 166 S.W.2d 1065 (Mo. 1942). However, before
the doctrine of qualified immunity will shield the bank from liability for the allegedly
defamatory comments and responses of the bank president, it must be determined
that the bank president made the comments to the bank examiners without actual
malice.

      In this case, the jury specifically found malice on the part of Rockwood Bank.
The following instruction was given to the jury:

      Instruction No. 23: If you find the issues in favor of Plaintiff, and if you
      believe that Defendant made the statements, with knowledge that they
      were false or with reckless disregard for whether they were true or false
      at a time when Defendant had serious doubt as to whether they were
      true, then in addition to any damages to which you find Plaintiff entitled
      under the foregoing paragraph, you may award Plaintiff an additional

                                         -10-
      amount as punitive damages in such sum as you believe will serve to
      punish Defendant and to deter it and others from like conduct.

In Instruction No. 24, the trial court instructed the jury that:

      [t]he burden is upon Plaintiff to cause you to believe by clear and
      convincing evidence the propositions of fact required for the recovery
      of punitive damages as submitted in . . . Instruction No. 23.

By way of response, in its verdict the jury awarded $200,000 in actual damages and
$75,000 in punitive damages.


      While the instruction admittedly was directed toward the damage portion of the
plaintiff's complaint, the jury nonetheless concluded that malice was present in
connection with the comments made to the bank examiners. Since malice was found,
the comments made by the bank president to the examiners would not qualify for
qualified immunity. We find that the district court did not err by deciding that the
comments made by the bank president were not protected by absolute or qualified
privilege. Accordingly, the judgment of the district court is affirmed on this issue.


      B.     Evidence From Which the Jury Could Have Found Malice.
      The second issue Appellant presents for appeal is whether the district court
erred by denying the appellant’s renewed motion for judgment as a matter of law. In
addition to its contention that the bank president’s comments were protected by an
absolute or qualified privilege, Appellant argues that if the comments were protected
by a qualified privilege, then there was insufficient evidence from which the jury
could have found that the comments were made with actual malice.



                                          -11-
      The denial of a motion for judgment as a matter of law is subject to de novo
review by this court. Denesha v. Farmers Ins. Exchange, 161 F.3d 491, 497 (8th Cir.
1998)(citations omitted). The appellate court will not reverse a jury verdict for
insufficient evidence unless “after viewing the evidence in the light most favorable
to the verdict, it concludes that no reasonable juror could have returned a verdict for
the non-moving party". Id. Further, in reviewing a denial of a motion for judgment
as a matter of law, the court must, 1) consider the evidence in the light most favorable
to the non-moving party, 2) assume that all conflicts were resolved in favor of the
non-moving party, 3) assume as proved all facts that the non-moving party’s evidence
tended to prove, 4) give the non- moving party the benefit of all favorable inferences
that may reasonably be drawn from the proved facts, and 5) deny the motion unless
all the evidence points one way and is susceptible of no reasonable inferences
sustaining the non-moving party’s position. Denesha, 161 F.3d at 497 (citations
omitted).


      The Appellant submits that since the jury rejected Gaia’s claim that the bank
president harbored ill-will towards Gaia solely because of his age, the jury had no
factual basis for attributing any bad motives at all to the bank president. This logic
misses the point. A finding of actual malice in the context of determining whether
qualified immunity protects Rockwood Bank from liability does not necessarily
depend upon a demonstration of a motive in the form of ill-will or animosity. As
previously discussed, actual malice means that the statements were made by the bank
president when he knew them to be false or with reckless disregard for their
truthfulness at a time when he had serious doubts as to whether they were true.
Although the jury did not believe that age discrimination was the motive behind the


                                         -12-
defamatory comments, it was nonetheless reasonable for the jury to conclude that the
bank president made statements about Gaia’s job performance that he knew were
false or with reckless disregard for their truthfulness. Reviewing the evidence in a
light most favorable to Gaia, there was ample evidence from which the jury could
have inferred both motive and actual malice. There was evidence that Gaia was hired
over the bank president’s objections, and that he gave Gaia vague and confusing
instructions about his job duties as executive vice-president in an effort to build a
case of incompetence against Gaia. In spite of Gaia’s assertions that his job
performance was more than adequate which he supported with empirical data, the
bank president persisted in his criticisms of Gaia for not meeting expectations and
placed numerous memos and notes in Gaia’s personnel file in order to bolster the
perception of Gaia’s allegedly lackluster performance. There was no dispute that the
bank president made the comments to the bank examiners, and the jury found that
either the bank president knew he was making false statements about Gaia’s job
performance or that he acted with reckless disregard for the truth. Therefore, the
district court did not err in denying appellant’s renewed motion for judgment as a
matter of law made on the basis that there was no proof of malice.


      C.     Whether the Allegedly Slanderous Remarks Were Defamatory.
      Appellant’s next point on appeal is that the district court erred by denying
Appellant’s motion for a new trial. We apply a deferential standard in our review of
a district court’s denial of a motion for a new trial. "‘The [district] court’s decision
will not be reversed by a court of appeals in the absence of a clear abuse of
discretion.’" Keenan v. Computer Associates Intern., Inc., 13 F.3d 1266, 1269 (8th
Cir. 1994)(citing Lowe v. E.I. DuPont de Nemours & Co., 802 F.2d 310, 310-11 (8th


                                         -13-
Cir. 1986)(citations omitted)). The key question is whether a new trial should have
been granted to avoid a miscarriage of justice. Keenan, 13 F.3d at 1269 (citations
omitted).


      Appellant contends that the jury’s verdict was against the weight of the
evidence as the allegedly slanderous comments made by Rockwood’s president were
not defamatory as a matter of law. In Missouri, whether language is defamatory and
actionable is a question of law to be decided by the court, and the court must
determine whether a statement claimed to be slanderous is reasonably capable of
defamatory meaning. See Ampleman v. Scheweppe, 972 S.W.2d 329, 331 (Mo.App.
E.D. 1998). "In exercising this function trial and appellate courts are required ‘to
determine whether the communication reasonably conveyed the meaning ascribed to
it by plaintiff and, if so, whether the meaning was defamatory in character.’"
Ampleman, 972 S.W.2d at 331 (citing Carey v. Pulitzer Publishing Co., 859 S.W.2d
851, 855 (Mo.App.E.D. 1993).


      Comments that tend to harm a person in his business or profession are one of
the traditional categories of slander per se. Carter v. Willert Home Products, Inc.,
714 S.W.2d 506, 509 (Mo. 1986). The words used by the defendant must impute to
the plaintiff a lack of knowledge, skill, capacity, or fitness to perform his duties.
Brown v. Kitterman, 443 S.W.2d 146, 154 (Mo. 1969). To be actionable, the words
"must strike at a person’s professional competence." Nazeri v. Missouri Valley
College, 860 S.W.2d 303, 311 (citation omitted). A statement that "tends to so harm
the reputation of another as to lower him in the estimation of the community or to
deter third persons from associating or dealing with him" is defamatory in character.


                                        -14-
Kennedy v. Jasper, 928 S.W.2d 395, 399-400 (Mo.App.E.D. 1996). We find that the
district court did not abuse its discretion in finding that the comments made by the
president of Rockwood Bank reasonably conveyed the meaning ascribed to them by
plaintiff, i.e., that Gaia lacked the knowledge, skill, capacity or fitness to perform
the duties of executive vice president. It is clear that the meaning of the words is
defamatory and actionable.


      Rockwood claims that the court erred in denying its motion for a new trial
because some of the objectionable remarks are true, and that the others are
constitutionally protected expressions of opinion. "Whether an alleged statement is
capable of being treated as an opinion or as an assertion of fact is a question of law
for the trial court." Nazeri, 860 S.W.2d at 314. "The test to be applied to an
ostensible ‘opinion’ is whether a reasonable fact finder could conclude that the
statement implies an assertion of objective fact." Id. at 314 (citing Milkovich v.
Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1 (1990)).
The Missouri Supreme Court has also held that the "issue of falsity relates to the
defamatory facts implied by a statement--in other words, whether the underlying
statement about the plaintiff is demonstrably false." Nazeri, 860 S.W.2d at 314. We
find that the district court did not abuse its discretion in concluding that there was a
question of fact as to whether some of the statements made by the bank president
about Gaia’s job performance were true. We also find no abuse of discretion by the
district court in finding that the "opinions" offered by the bank president implied
assertions of objective fact regarding Gaia’s abilities as a bank officer.


      Appellant next contends that the district court erred in denying its motion for


                                         -15-
a new trial because there was no causal link between the slanderous comments and
Gaia’s damages. There was no abuse of discretion when the district court found that
the evidence supported the jury’s determination that the decision of the Missouri
Division of Finance to approve the new bank charter only if Gaia’s name was
withdrawn as the proposed president was based upon the slanderous comments
contained in the reports of the bank examiners. Therefore, the denial of Rockwood’s
motion for a new trial is affirmed in all respects on the defamation issue.


      D.     Appropriate Jury Instruction as to the Law on Pretext.
      The sole remaining issue for determination is whether the jury was properly
instructed as to the law on pretext in the age discrimination claims brought by
Appellee Gaia. The trial court has broad discretion in instructing the jury. Cross v.
Cleaver, 142 F.3d 1059, 1067 (citing Ryther v. KARE 11, 108 F.3d 832, 846 (8th Cir.
1997)(en banc)(citations omitted)). When reviewing an instruction on appeal, the
appellate court must decide whether the instruction fairly and adequately states the
applicable law.   Id. We have previously held, and do so again today, that in a
discrimination case where pretext is alleged, the plaintiff must prove that the
prohibited factor was the determining factor, not merely a determining factor, in the
adverse employment decision. See Foster v. University of Arkansas, 938 F.2d 111,
115 (8th Cir. 1991). This was not a mixed-motives case. The issue for the jury was
whether the adverse employment action was caused by the plaintiff's age or by
legitimate business factors. As we understand the record, these motives were
mutually exclusive. In addition, we note that the instruction in question carefully
advised the jury that "[a]ge is the determining factor if Plaintiff would not have been
demoted and discharged except for his age." This is a correct statement of the law.


                                         -16-
Accordingly, we affirm the district court’s denial of Gaia’s motion for a new trial.


III.   Conclusion
       For the reasons stated above, the judgment and orders of the district court are
AFFIRMED in all respects.




       A true copy.


             Attest:


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




                                         -17-
