                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2242
                                   ___________

Shireen A. Walsh,                         *
                                          *
                     Appellee,            *
                                          *   Appeal from the United States
      v.                                  *   District Court for the
                                          *   District of Minnesota.
National Computer Systems, Inc.,          *
a Minnesota corporation,                  *
                                          *
                     Appellant.           *

--------------------

Trial Lawyers for Public Justice, P.C.;
                                     *
Program on Gender, Work & Family,    *
                                     *
      Amici on Behalf of Appellee,   *
                                ___________

                             Submitted: May 14, 2003

                                  Filed: June 23, 2003 (Corrected July 11, 2003)
                                   ___________

Before BOWMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.
      National Computer Systems, Inc. (NCS) appeals from a judgment of the district
court awarding Shireen A. Walsh compensatory damages, punitive damages,
prejudgment interest, attorneys' fees, and costs totaling $625,526. It argues the
judgment should be set aside because all of Walsh's claims are barred by the
applicable statute of limitations, and fail as a matter of law because there is no
evidence to support the view that Walsh was discriminated against because of her
pregnancy under either Title VII or the Minnesota Human Rights Act (MHRA). It
further argues that Walsh was not entitled to punitive damages because she did not
prove malice or reckless indifference to her rights. Finally, NCS contends that if
punitive damages were appropriately assessed, they were excessive. We affirm.

                                  I. Background

      We review the facts in the light most favorable to the jury’s verdict. Walsh
worked as an account representative in the customer service division of NCS from
May 1993 through October 30, 1998. She was a salaried (“exempt”) employee whose
duties included selling and renewing service contracts on scanners sold to NCS
customers. She was considered a “top performer.” Walsh received multiple
promotions, regular raises, and consistently favorable performance evaluations
throughout her employment at NCS.

       In March 1997, Barbara Mickelson became Walsh’s supervisor. Walsh was
pregnant at the time and experienced medical complications related to her pregnancy,
requiring frequent medical attention. NCS maintained a policy that entitled exempt
employees to take unlimited sick leave for doctor appointments for themselves or
their children, but Mickelson repeatedly asked Walsh for advance notification and
documentation of Walsh’s doctor appointments. Other account representatives were
not required to provide the same information about their appointments.




                                        -2-
       Walsh took full-time medical leave from April 7, 1997 until the birth of her son
on May 9, 1997. She returned to work on August 4, 1997 after her maternity leave,
and immediately experienced hostility from Mickelson. When Walsh was showing
co-workers pictures of her son on her first day back to work, Mickelson told her to
stop disrupting the office and to get back to work. Mickelson gave Walsh’s co-
workers the afternoon off to go to a craft fair as a reward for having covered Walsh’s
workload while she was on leave, but Walsh was told to stay in the office and watch
the phones. One morning when Walsh arrived at 7:37 a.m. instead of 7:30 because
she was delayed by her son’s illness, she found an email sent from Mickelson at 7:33
that suggested that Mickelson was scrutinizing Walsh’s hours. When Walsh asked
if she could change her schedule to leave work at 4:30 p.m. instead of 5:00 because
her son’s daycare closed at 5:00, Mickelson told Walsh that her territory needed
coverage until 5:00 and that “maybe she should look for another job.” Other account
representatives left work at 3:45 on a regular basis, and Mickelson testified at trial
that Walsh’s territory did not need to be covered through 5:00. Walsh was required
to submit a vacation form when other workers were not. Mickelson attached signs
(“Out – Sick Child”) to Walsh’s cubicle when Walsh had to care for her son, yet notes
typically were not placed on other absent employees’ cubicles. Mickelson
reprimanded Walsh for “chit-chatting” in the cubicle section, when she was actually
discussing work with a co-worker. Mickelson referred to Walsh’s son as “the
sickling.” Mickelson placed a note in Walsh’s personnel file regarding a minor
incident involving Walsh’s retrieval of a personal fax intended for a co-worker, as
requested by the co-worker. Mickelson informed Walsh that she must make up
“every minute” that she spent away from the office for doctors appointments for
herself or her son and time spent caring for her son. No other employee was required
to make up work for time missed due to appointments and other personal matters. At
one point, Mickelson threw a phone book on Walsh’s desk and told her to find a
pediatrician who was open after hours. When Walsh told Mickelson she needed to
pick her son up from daycare because he was ill, Mickelson replied, “Is this an April
Fool’s joke? If so, it’s not at all funny.” Walsh fainted at work as a result of stress

                                         -3-
and was brought to the hospital. The next day, Mickelson stopped at Walsh’s cubicle
and told her, “you better not be pregnant again.”

       In October 1997, Walsh reported to NCS's human resources representative,
Mike McRath, that she was being treated differently than other account
representatives and was required to make up time spent taking her son to the doctor.
In the same month, Walsh’s workload was increased without an increase in salary.
McRath told her that if she was “accusing management of doing something unethical,
she better have proof.” In June 1998, when Walsh confronted Mickelson about the
way she treated account representatives at a meeting, Mickelson swore at Walsh and
pounded on the table. The next day Walsh told Mickelson that she wanted to be
treated fairly, and Mickelson responded that it was an issue of manager’s discretion.
When Walsh reported Mickelson’s behavior to Bruce Haseley, human resources
manager, he appeared disinterested and told Walsh he could not take sides in the
matter. Soon, department changes increased Walsh’s responsibilities, which required
her to work overtime. Walsh protested and Mickelson yelled at her. They went to
Haseley’s office for mediation, and Haseley offered no assistance. No investigation
occurred either before or after Walsh’s departure.

       Walsh believed she would not be treated fairly at NCS, so she began to search
for another job in October 1998. She accepted employment with West Group and
submitted a letter of resignation to NCS on October 19, 1998, effective October 31,
1998. On October 23, 1998, Walsh reconsidered her decision to resign and called
Haseley to tell him that because she liked many aspects of her job at NCS, she would
stay on if the situation with Mickelson could be worked out and if she were treated
fairly. Haseley said he did not think that was possible, but indicated he would speak
with Mickelson. He called Walsh back to tell her that Mickelson wished to continue
with her termination.




                                         -4-
       On August 17, 1999, Walsh mailed a charge of gender discrimination against
NCS to the Equal Opportunity Employment Commission (EEOC). The charge was
cross-filed with the Minnesota Department of Human Rights (MDHR). A right-to-
sue letter was issued on August 26, 1999.

      On October 15, 1999, Walsh commenced an action and served NCS with a
complaint, asserting claims under Title VII, the MHRA, the Family Medical Leave
Act (FMLA), the Minnesota Parental Leave Act (MPLA), and the Minnesota Sick or
Injured Child Care Act. The complaint was drafted as a federal action, but
erroneously filed in Hennepin County District Court. Counsel for Walsh and NCS
conferred, and at NCS’s request, Walsh withdrew the action from state court and
delayed filing the matter in federal court until after settlement negotiations.
Negotiations continued through January 12, 2000, but did not result in a settlement.
On January 14, 2000, Walsh filed her complaint in federal district court.

       Following the close of discovery, NCS filed a motion for partial summary
judgment, requesting that the following claims be dismissed: constructive discharge
and failure to hire under Title VII, the MHRA, the MPLA, the Minnesota Sick or
Injured Child Care Leave Act, and the FMLA; reprisal claims under Title VII and the
MHRA; discrimination and denial of benefits under FMLA; retaliation under the
MPLA, and denial of benefits under the Minnesota Sick or Injured Child Care Leave
Act. NCS did not request that Walsh's hostile work environment claim under either
the MHRA or Title VII be dismissed. The district court1 denied the motion, with the
exception of Walsh's complaints under the FMLA and the Minnesota Sick or Injured
Child Care Act. Walsh voluntarily dismissed certain claims, including statutory wage
violations, breach of contract, and defamation.



      1
       The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.

                                        -5-
       The remaining claims were tried before a jury in January 2002. The jury found
for NCS on Walsh’s failure to rehire claim, but found that Walsh: had been subjected
to a hostile work environment; had been constructively discharged on the basis of
pregnancy or gender discrimination and because she had taken leave; and had been
retaliated against on the basis of pregnancy or gender discrimination and leave
discrimination. The jury awarded Walsh $11,000 for wage and benefit loss, $45,000
for other damages, and $382,145 in punitive damages. On January 30, 2002, the
court ordered judgment entered in Walsh’s favor for $438,145.40.

        NCS filed a motion for judgment as a matter of law, or, in the alternative, a new
trial or remittitur of the punitive damages portion of the jury’s award. Walsh filed a
motion for attorneys’ fees and costs, for a multiplication of her compensatory
damages award under the MHRA, for liquidated damages under the FMLA, for
prejudgment interest, and to amend the complaint for punitive damages under
Minnesota law.          The district court adopted the magistrate’s2 report and
recommendation, which denied Walsh’s motion to amend her complaint, reduced the
punitive damages amount to the Title VII statutory cap of $300,000, and denied
NCS’s motion for judgment as a matter of law. The order granted Walsh’s motions
to multiply her award under the MHRA, for liquidated damages under the FMLA, for
attorneys’ fees, and for prejudgment interest. The original entry of judgment was
vacated, and judgment of $625,525.90 was entered for Walsh by order dated
August 27, 2002. NCS appeals.




      2
       The Honorable Franklin L. Noel, United States Magistrate Judge for the
District of Minnesota.

                                          -6-
                                   II. Discussion

A. Statute of Limitations

      Walsh submitted a written notice of resignation on October 19, 1998, effective
on October 31, 1998. However, on October 23, 1998, Walsh informed the human
resources office that she would be willing to remain on the job if NCS took steps to
end the harassment and discriminatory actions of Mickelson. NCS stated there was
nothing it would do to remedy the situation and that Mickelson wanted to proceed
with the termination. The district court found that Walsh filed a charge of
discrimination with the EEOC on August 18, 1999, within 300 days after NCS
informed her that it would not attempt to modify Mickelson’s conduct. We agree
with the district court that there was no violation of 42 U.S.C. § 2000e-5(e)(1).
Walsh’s pregnancy discrimination and retaliation claims under Title VII were
properly before the district court.

      With regard to Walsh’s claims of pregnancy discrimination, harassment based
on pregnancy, and retaliation under the MHRA, she was required to file a charge or
lawsuit within one year of the alleged discrimination and retaliation. Minn. Stat. §
363.06, subd. 3. Walsh’s EEOC charge was cross-filed with the Minnesota
Department of Human Rights on August 25, 1999. NCS asserts that any pregnancy
discrimination claims under the MHRA based on acts prior to August 25, 1998 are
time-barred. The district court disagreed, finding that the continuing violation
doctrine, discussed in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116-17
(2002), supports Walsh’s position on the matter. She alleged she suffered a hostile
work environment from the day she returned from her leave through October 31,
1998. Her hostile environment claims involved repeated conduct that commenced
outside the limitations period, but continued into the one-year statute of limitations
period. Because Walsh has alleged a continuing pattern of related discriminatory
events rather than discrete discriminatory actions, her hostile environment claim falls

                                         -7-
squarely within the Morgan continuing violation theory. Her MHRA claims are not
time-barred.

       Finally, NCS argues in the alternative that Walsh’s Title VII and MHRA claims
are time-barred because Walsh filed a federal action 141 days after she received the
right-to-sue letter, well beyond the 90-day limit for the Title VII claims and the 45-
day limit for the MHRA claims. The district court correctly determined that NCS’s
attorney’s actions “lulled” Walsh into delaying the refiling of her complaint in federal
court, and tolled the statute of limitations on the Title VII claims. With regard to the
MHRA 45-day statute of limitations period, NCS alleges it never received proper
service for the federal claim, and therefore did not receive timely notice of the MHRA
claim. The district court determined that although service of the federal claim was
defective because the clerk did not sign and seal the summons, NCS suffered no
resulting prejudice. It knew the MHRA claim was attached to the federal claim. We
affirm the district court on this matter as well, and proceed to the merits of the case.

B. Judgment as a Matter of Law Claims

         We turn to the question of whether the district court erred in refusing to grant
NCS's motion for judgment notwithstanding the verdict. We review the district
court’s decision as to whether to grant a motion for a judgment as a matter of law de
novo. Kipp v. Missouri Highway & Transp. Comm’n, 280 F.3d 893, 896 (8th Cir.
2002). The court draws “all reasonable inferences in favor of the nonmoving party,
and [does] not make credibility determinations or weigh the evidence.” Id. (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). We must
“assume that the jury resolved all conflicts of evidence in favor of [the nonmoving]
party, assume as true all facts which the prevailing party’s evidence tended to prove,
. . . and deny the motion, if in light of the foregoing, reasonable jurors could differ as
to the conclusion that could be drawn from the evidence.” Minneapolis Cmty. Dev.
Agency v. Lake Calhoun Assoc., 928 F.2d 299, 301 (8th Cir. 1991) (quotation

                                           -8-
omitted). A jury verdict will not be set aside unless “there is a complete absence of
probative facts to support the verdict.” Browning v. President Riverboat Casino-
Missouri, Inc., 139 F.3d 631, 634 (8th Cir. 1998).

      1. Failure to Comply with Federal Rule of Civil Procedure 50(a)

        Under Fed.R.Civ.P. 50(a)(2), a motion for judgment as a matter of law must
“specify the judgment sought and the law and the facts on which the moving party is
entitled to the judgment.” Adherence to the rule is mandatory. Lynch v. City of
Boston, 180 F.3d 1, 13 n.9 (1st Cir. 1999); Galdieri-Ambrosini v. Nat'l Realty & Dev.
Corp., 136 F.3d 276, 287 (2d Cir. 1998); Guilbeau v. W.W. Henry Co., 85 F.3d 1149,
1160 (5th Cir. 1996). “[T]he purpose of requiring the moving party to articulate the
ground on which JMOL is sought ‘is to give the other party an opportunity to cure the
defects in proof that might otherwise preclude him from taking the case to the jury.’”
Galdieri-Ambrosini, 136 F.3d at 286 (citations omitted). If specificity is lacking,
judgment as a matter of law may neither be granted by the district court nor upheld
on appeal unless that result is “required to prevent manifest injustice.” Cruz v. Local
Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1155 (2d Cir. 1994).
“‘[T]echnical precision is not necessary in stating grounds for the motion so long as
the trial court is aware of the movant’s position.’” Rockport Pharm., Inc. v. Digital
Simplistics, Inc., 53 F.3d 195, 197-98 (8th Cir. 1995) (quoting Cortez v. Life Ins. Co.
of N. Am., 408 F.2d 500, 503 (8th Cir. 1969)). If colloquy between counsel and the
trial court fleshes out the motion, it may provide the opposing party with the requisite
notice. Galdieri-Ambrosini, 136 F.3d 287. However, post-trial motion for judgment
may not advance additional grounds that were not raised in the pre-verdict motion.”
Rockport Pharm., 53 F.3d at 197.

      NCS filed a motion for a directed verdict when Walsh closed her case, and
again at the close of all evidence. Both motions were denied by the district court. On
neither occasion did NCS submit a memorandum detailing the law and facts upon

                                          -9-
which it requested judgment in its favor, nor did colloquy between counsel and the
court sufficiently explain NCS’s legal reasoning.3 After the jury returned its verdict,
NCS renewed its motion for judgment as a matter of law pursuant to Rule 50(b). For
the first time, NCS filed a thorough memorandum in support of its motion.

       We typically do not review the sufficiency of the evidence if the trial court
denied a motion that does not state specific grounds as required by Rule 50(a) with
which NCS failed to comply. NCS did not support its request for directed verdict
with specific legal grounds at the time of its motions. It did not specify the grounds
upon which it requested a directed verdict until it filed its renewed motion for
judgment as a matter of law following the jury’s verdict. We conclude, however, that
NCS clarified its position as to some of the causes of action in its memorandum
supporting its motion for partial summary judgment. The memorandum provided the
plaintiff and the court with notice of its legal position with regard to Walsh’s
constructive discharge, failure to hire, and retaliation claims under Title VII and the
MHRA. It did not, however, request summary judgment on Walsh’s hostile work
environment claim. Because NCS did not legally challenge the issue below, it is
precluded from raising the issue on appeal.

     In sum, NCS requested summary judgment on all issues that were ultimately
submitted to the jury, with the exception of the hostile work environment claim. The

      3
       When Walsh closed her case, defense counsel stated, “I’m going to make a
motion under Rule 50.” (Tr. at 501.) The district court responded that it would take
the motion under advisement. Id. “Do I need to make my motion on the record?”
asked defense counsel. Id. “You just did,” replied the court. Id. At the close of all
evidence, defense counsel stated, “[d]efendant moves again at this time on Rule 50
for a directed verdict.” (Tr. at 670.) He asked whether the court wanted an
explanation, and the court replied, “[n]o, if you feel compelled you can submit
something in writing, but . . . I trust that the defense wishes, or plaintiff wishes to
stand on the record?” Id. at 671. Defense counsel replied affirmatively, and the court
indicated that the motion would remain under advisement. Id.

                                         -10-
jury returned verdicts for Walsh on several claims, including hostile work
environment, and returned general damage awards of $11,000 and $45,000.4 This
court has made it very clear that where the court submits a single damage question for
multiple claims and where the evidence supports the actual damage award on any of
the claims, the award will not be set aside. LeSeuer Creamery, Inc. v. Haskon, Inc.,
660 F.2d 342, 346 n.7 (8th Cir. 1981); Hinkle v. Christensen, 733 F.2d 74, 76 (8th
Cir. 1984). Here the damage awards are clearly supported by the hostile work
environment claim.

       Furthermore, although NCS indicates it objected to the court’s proposed jury
instructions and offered its own set of instructions off the record in chambers, it failed
to comply with Fed.R.Civ.P. 51 and did not preserve its objection to the provided
instructions on appeal. Rule 51 mandates that “[n]o party may assign as error the
giving or the failure to give an instruction unless that party objects thereto before the
jury retires to consider its verdict, stating distinctly the matter objected to and the
grounds of the objection.” “Our law on this subject is crystal clear: to preserve an
argument concerning a jury instruction for appellate review, a party must state
distinctly the matter objected to and the grounds for the objection on the record.”

      4
       If you find in favor of the plaintiff on any of the above claims, answer the
following questions:

            1. We, the jury, find plaintiff's lost wages and benefits through
      the date of this verdict to be:

             $11,000.

           2. We, the jury, find plaintiff's other damages, excluding lost
      wages and benefits, to be:

             $45,000.

(Emphasis added.)

                                          -11-
Dupre v. Fru-Con Eng'g, Inc., 112 F.3d 329, 334 (8th Cir. 1997) (emphasis added).
NCS cannot now claim that Walsh is barred from recovering compensatory damages
on her hostile work environment claim. We therefore affirm the jury’s verdict and
award of compensatory damages.

      2. The Merits of the Case: Gender Discrimination on the Basis of Pregnancy

      Even if NCS had preserved its right to appeal the jury’s verdict on the hostile
work environment claim, the facts of the case support Walsh’s claim that she was a
member of a protected class and was discriminated against on the basis of her
pregnancy. Congress amended Title VII to incorporate pregnancy discrimination
within the purview of Title VII’s protection against gender discrimination. The
amended statute provides in part:

      [t]he terms “because of sex” or “on the basis of sex” include, but are not
      limited to, because of or on the basis of pregnancy, childbirth, or related
      medical conditions; and women affected by pregnancy, childbirth, or
      related medical conditions shall be treated the same for all employment-
      related purposes, including receipt of benefits under fringe benefit
      programs, as others persons not so affected but similar in their ability or
      inability to work, and nothing in section 2000e-2(h) of this title shall be
      interpreted to permit otherwise.

42 U.S.C. § 2000e(k). NCS argues that Walsh is alleging parent or caretaker
discrimination, which is not proscribed by Title VII. See Piantanida v. Wyman Ctr.,
Inc., 116 F.3d 340, 342 (8th Cir. 1997) (holding that childcare is not gender specific
in the way that pregnancy and childbearing are, and that any discrimination
experienced on the basis of a parent’s decision to care for a child is not actionable
because parenthood is not a protected class). Walsh asserts that she was
discriminated against not because she was a new parent, but because she is a woman
who had been pregnant, had taken a maternity leave, and might become pregnant


                                         -12-
again. “Potential pregnancy . . . is a medical condition that is sex-related because
only women can become pregnant.” Krauel v. Iowa Methodist Med. Ctr., 95 F.3d
674, 680 (8th Cir. 1996). Because Walsh presented evidence that it was her potential
to become pregnant in the future that served as a catalyst for Mickelson’s
discriminatory behavior, we will not disturb the jury verdict.

      Once Walsh returned to work from her maternity leave, Mickelson made
several discriminatory remarks to her. During a discussion about Walsh’s co-
worker’s pregnancy, Mickelson sarcastically commented to Walsh, “I suppose you’ll
be next.” On another day, Walsh took a half-day vacation to go on a boat trip with
her husband. After she returned, Mickelson stated, “[w]ell, I suppose now we’ll have
another little Garrett5 running around.” On April 23, 1998, Walsh fainted at work and
had to go to the hospital. The following day Mickelson stopped by Walsh’s cubicle
and said, “You better not be pregnant again!” Furthermore, when Walsh was
pregnant, Mickelson asked Walsh for advanced notification and documentation of her
doctor appointments, while other account representatives were not required to provide
the same information concerning their appointments. Mickelson’s comments,
combined with the conduct detailed above in Section I of this opinion, provide ample
support for the jury’s finding that Walsh was discriminated against on the basis of her
pregnancy.6




      5
          The name of Walsh’s son.
      6
       Moreover, NCS conceded there were fact questions regarding whether Walsh
was treated differently as a result of her pregnancy and stated that the issue was
“inappropriate for resolution in a motion for summary judgment.” Defendant’s Reply
Memorandum in Support of Motion for Partial Summary Judgment at 2 n.3 (No. 00-
CV-82).

                                         -13-
C. Punitive Damages

       Title VII allows for an award of punitive damages if the defendant committed
illegal discrimination “with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). “Reckless
indifference” means that the defendant had “knowledge that it may be acting in
violation of federal law.” Kolstad v. American Dental Ass’n, 527 U.S. 526, 535
(1999). Reckless indifference may be imputed to the employer if an employee
commits a discriminatory act while serving in a managerial capacity and acts within
the scope of employment. Id. at 543. We have upheld punitive damages awards in
cases where the employer has deliberately turned a deaf ear to discriminatory conduct.
Beard v. Flying J, Inc., 266 F.3d 792, 804 (8th Cir. 2001) (punitive damages
appropriate where specific complaints about sexual assault were made and the
company failed to take action); Henderson v. Simmons Foods, Inc., 217 F.3d 612,
619 (8th Cir. 2000) (punitive damages appropriate where plaintiff had specifically
complained to her supervisors over forty times of sexual assault and supervisors did
not take action, refused her request for a transfer).

       The record shows that NCS had knowledge that it may have been acting in
violation of federal law by not investigating Walsh’s complaints that she was being
treated unfairly. Mickelson testified that she had received training on NCS’s
nondiscrimination corporate policies.7 She indicated she understood that harassment
on the basis of sex was inclusive of discriminating against someone for being
pregnant. Bruce Haseley and Michael Sherck testified that NCS has a policy
prohibiting the harassment of women on the basis of pregnancy and requiring a




      7
       NCS’s nondiscrimination policy is listed under the Equal Employment
Opportunity section of the Human Resources Guidelines, suggesting the principles
are founded in federal law.

                                        -14-
prompt investigation of any allegation of a policy violation.8 Haseley also testified
that he would take very seriously a complaint that a manager was making derogatory
remarks about people getting or possibly being pregnant. He claimed, however, that
there were never allegations to investigate because Walsh had never complained that
she was being discriminated against on the basis of sex.




      8
          The colloquy between counsel and Haseley was as follows:

      Q. NCS has a policy that it will not discriminate, is that correct?

      A. That’s correct.

      Q. And not subject people to harassment either, is that right?

      A. That’s correct.

      Q. Is it your understanding that harassment includes more than sexual
      harassment, can include harassment based upon gender, for example?

      A. That’s correct.

      Q. And gender can include such things as pregnancy and the conditions of
      being a woman, right?

                                          ***
      A. Yes, that’s correct.

      Q. And so NCS has a policy that it won’t discriminate or harass women on the
      basis of pregnancy or pregnancy leave, maternity leave, is that correct?

      A. That’s correct.

(Tr. at 162-63.)

                                        -15-
       In fact, there were at least ten separate reports to human resources that Walsh
was being treated unfairly. Walsh reported Mickelson’s conduct at least six times.
Amy Elmer, a co-worker, testified that when she was pregnant she reported
Mickelson’s abusive conduct toward Walsh and herself to Haseley and Michael
Sherck, Mickelson’s supervisor. Nancy Immediato testified that she had reported
Mickelson’s discriminatory comments related to pregnancy to several NCS
supervisors, but that no one responded to her complaints. Sherck admitted that he
knew about the allegations of pregnancy discrimination and had asked Haseley to
investigate them.

       In spite of the NCS supervisors’ knowledge of alleged harassment on the basis
of pregnancy, NCS did not investigate the reported complaints. Haseley admitted
NCS conducted an investigation of the high turnover rate in Mickelson’s department,
but denied there had been specific, gender-based complaints that would prompt an
investigation into Mickelson’s discriminatory conduct. Walsh testified she talked to
Haseley about her having to report her absences to Mickelson and the way Mickelson
treated her. Haseley responded that he could not take sides on the matter. Walsh told
Haseley she would consider staying with NCS if he could assure her that her working
conditions under Mickelson would improve. Haseley refused. Although Walsh may
not have specifically stated to management that Mickelson’s conduct rose to the level
of a federal violation, she need not have made such a specific complaint. Mickelson,
Haseley, Sherck and McRath were aware that NCS’s nondiscrimination policy,
consistent with federal law, prohibited comments and conduct that disparaged
pregnancy and potential pregnancy. In light of these facts, we hold there is sufficient
evidence that NCS demonstrated reckless indifference to the numerous allegations of
pregnancy discrimination reported by several women, including Walsh. We affirm
the jury’s verdict that NCS acted with the requisite reckless indifference that gives
rise to an award of punitive damages.




                                         -16-
       Finally, we reject NCS’s contention that the punitive damages award must be
vacated because it is excessive and unconstitutional. In determining whether an
award of punitive damages is excessive, we must consider “the degree of
reprehensibility of the defendant’s conduct and the ratio between the actual harm
inflicted on the plaintiff and the punitive damages award.” Beard, 266 F.3d at 804
(quotation omitted). Initially, it is important to note that NCS did not argue before
the jury that punitive damages should not be awarded. The district court reduced the
punitive damages award from $382,145.40 to $300,000 and increased the
compensatory damages award from $56,000 to $112,000. The ratio of statutorily
modified punitive damages to compensatory damages is 3 to 1. The ratio of
unmodified damages is 6.8 to 1.

       Either way, the punitive damages award is not grossly excessive, either
numerically or in relationship to the hostile environment in which Walsh worked.
See Ogden v. Wax Works, Inc., 214 F.3d 999, 1011 (8th Cir. 2000) (rejecting
argument that ratio to compensatory damages of 6.5 to 1 was excessive); Kimbrough
v. Loma Linda Dev., Inc., 183 F.3d 782, 785 (8th Cir. 1999) (upholding a punitive
damages award with a 10 to 1 ratio to compensatory damages). Additionally, as
detailed above, NCS’s conduct was reprehensible. It failed to take any action to
investigate Walsh’s complaints about the discriminatory working conditions under
Mickelson’s direction, and management repeatedly told Walsh that it did not want to
get involved in the dispute. Failing to take action on repeated complaints of
mistreatment and misconduct is precisely the type of conduct punitive damage awards
are intended to deter. We therefore affirm the award of punitive damages.

                                  III. Conclusion

      For the reasons cited above, we affirm the jury’s verdict and award of damages.




                                        -17-
A true copy.

      Attest:

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




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