                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                               Nos. 01-3591/01-3592
                                   ___________

Rhonda Moses Warren,                 *
                                     *
      Appellee/Cross-Appellant,      *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the Eastern
Steve Prejean, Missouri Department   * District of Missouri.
of Social Services, Division of      *
Youth Services,                      *
                                     *
      Appellants/Cross-Appellees.    *
                                ___________

                             Submitted: June 12, 2002

                                  Filed: August 14, 2002
                                   ___________

Before RILEY, BEAM, and MELLOY, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

        Missouri Division of Youth Services ("DYS") and Steve Prejean (hereinafter
"Appellants") appeal from the result of a jury trial held in October 2000. Appellants
seek to vacate the jury verdict in favor of Rhonda Moses Warren and the granting of
a new trial or, in the alternative, they request judgment as a matter of law on Counts
I, II and III. Appellants further seek dismissal of Count II of the complaint and ask
that this court vacate the district court's1 Amended Judgment of September 28, 2001,
in favor of Warren. Finally, Appellants argue that the 825 hours awarded to Warren
for attorney fees is unreasonable and excessive, and that pre-litigation fees and costs
are non-compensable.

       Warren cross-appeals, seeking reinstatement of the judgment entered October
31, 2000, awarding damages totaling $730,000. Warren also seeks an affirmation of
the trial court's award of attorney fees and costs. For the reasons that follow, we
affirm the district court.

I.    BACKGROUND

      We recite the facts in the light most favorable to the jury's verdict. Henderson
v. Simmons Foods, Inc., 217 F.3d 612, 613 (8th Cir. 2000). Warren worked for the
W.E. Sears Youth Center ("Sears"), a facility which is part of DYS, as a youth
specialist from July 1989 until December 15, 1995, the date of her termination.
Youth specialists are directly involved in the custody, control, and care of the
juveniles at the facility and assist in their rehabilitation. In June 1991, Warren filed
a grievance with DYS alleging that the male youth specialists were receiving
preferential schedules with respect to midnight shift assignments. The grievance was
resolved in Warren's favor, and DYS committed to changing the scheduling so that
the midnight shift was allocated equally between men and women. The events
following the grievance form the basis of Warren's claims of retaliation and
discrimination, and provide the framework for evidence introduced at trial in October
2000.




      1
       The Honorable Lewis M. Blanton, United States Magistrate Judge for the
Eastern District of Missouri. The parties consented to trial before a United States
Magistrate Judge, pursuant to 28 U.S.C. § 636(c), with direct review to this court.

                                          -2-
       Steve Prejean was the facility manager at the time Warren filed her grievance.
At that same time, John Gibbons was a Youth Specialist in Warren's group. Gibbons
was upset by the grievance procedure because the decision to equally allocate the
midnight shift to men and women disrupted his family life. Dennis Seidner, the
personnel officer who ultimately approved the decision to terminate Warren, was
directly involved in processing Warren's grievance.

       Warren claims that immediately following the filing of the grievance, she
experienced retaliation from both Gibbons and Prejean. For example, Gibbons
refused to work with Warren and accused Warren of sleeping on the job two or three
weeks later. Warren testified that Prejean also warned her not to file any more
grievances, not to make any more complaints, and to be a good girl. Prejean also
revealed to the supervisory staff in violation of DYS' confidentiality policy that
Warren filed a grievance. Warren ultimately sought a transfer to another unit shortly
after the grievance incident. Her new supervisor, Naomi Backus, immediately
warned Warren that she knew of the grievance and did not want any problems.
Prejean also warned other employees about Warren. However, Backus ultimately
gave Warren "highly successful" performance evaluations for the next two years.

       At all times following the grievance, the relationship between Warren and
Prejean remained strained. In fact, at one time Prejean told Warren that she was too
assertive for a woman, and Warren noted Prejean's intimidating attitude toward her
during visits in his office. When Warren was later accused of improper behavior with
the youth, Prejean told her that she would finally know what it feels like to go
through the grievance process. In the summer of 1993, Gibbons became Warren's
supervisor. Within two weeks, Warren's work life changed and she noticed little
problems like irregular scheduling and denial of time off that she had previously
scheduled. At trial, Warren and Melissa Swift, a Sears counselor, testified that during
the next two years Gibbons treated Warren disparately, including lower performance
ratings, unfavorable work schedules, and rejecting her suggestions at team meetings.

                                         -3-
Gibbons also confirmed that when he took part in a panel interview for a teaching
position for which Warren had applied, he described her as largely incompetent,
plotting and manipulative, nefarious, dishonest, underhanded, and a high-
maintenance employee in the truest sense of the word. However, Warren was never
disciplined during the six and one-half years of her employment with DYS prior to
the circumstances that led to her dismissal.

        In 1995, numerous complaints surfaced regarding Warren. The accusations
included inappropriate physical contact with juveniles; inappropriate physical contact
with co-workers; sexual harassment of John Westerman, a contract social worker; and
three incidents of sleeping during her shift. Warren testified that on November 3,
1995, Prejean and Gibbons told her that there would be an investigation into certain
allegations, would not tell Warren what exactly those allegations were, and placed her
on administrative leave, escorting her off the property. Another employee testified
at trial that she overheard Gibbons discussing Warren's leave with someone and that
Gibbons stated that it had taken them several years to get it done. Gibbons and
Prejean investigated the allegations against Warren, and Seidner relied upon that
investigation in determining whether to terminate Warren. Warren received her letter
of termination at the end of November 1995.

       During the investigation, Gibbons and Prejean collected statements from
Warren's co-workers and numerous youths in Warren's group. Warren claims that
these statements were fabricated and she spent a great deal of time at trial attempting
to prove this theory. In support of her theory, Warren presented testimony from the
youths' counselors, who said that the youths in Warren's group revealed to them that
Gibbons approached the youths and asked them to write negative statements about
Warren. Additionally, many of Warren's co-worker's statements were written by
Gibbons and signed by the employee. One employee testified that he was called into
Prejean's office three or four times, and that Gibbons and Prejean coerced him into
signing statements supporting the allegations against Warren. Warren also presented

                                         -4-
evidence that Westerman's allegations of sexual harassment were fabricated.
Westerman's allegations consisted largely of incidents that occurred when he turned
around and bumped into Warren's chest. Westerman admitted that he had a
professional conflict with Warren, and that the income he received from Sears
increased significantly in the years following Warren's termination.

        Warren filed this lawsuit alleging that DYS discriminated against her on the
basis of sex and retaliated against her in violation of Title VII (Counts I and II). She
also filed a Section 1983 claim against Steve Prejean, and a corresponding state law
claim for intentional infliction of emotion distress against DYS (Counts III and IV
respectively). At the close of Warren's evidence, the district court granted Prejean's
motion for judgment as a matter of law on Count IV. The jury returned a verdict in
favor of Warren, awarding Warren $60,000 in actual damages and $150,000 in
compensatory damages on each of her three claims in addition to $100,000 in
punitive damages on Count III. This initial judgment totaled $730,000. On
September 28, 2001, the district court reduced the judgment to a total of $60,000 in
actual damages and $150,000 in compensatory damages for all three claims, thus
reducing the total award to $310,000. The district court also awarded attorney fees
in its September 28, 2001, order.

II.   DISCUSSION

      A.     Lack of Subject Matter Jurisdiction

       The first of Appellants' many points of error is that Count II of Warren's
complaint, alleging retaliation pursuant to 42 U.S.C. § 2000e-3(a), should be
dismissed for lack of subject matter jurisdiction. The district court denied Appellants'
motion to dismiss in its September 28, 2001, order. We review the district court's
conclusions of law de novo. Lewis v. Wilson, 253 F.3d 1077, 1079 (8th Cir. 2001),
cert. denied, 122 S. Ct. 1536 (2002).

                                          -5-
       Appellants claim that the retaliation provision in the Civil Rights Act of 1964
exceeds Congress' authority to abrogate Missouri's Eleventh Amendment immunity,
arguing that section 704(a) of Title VII is not a valid exercise of Congress' authority
under the Fourteenth Amendment. Appellants contend that Congress failed to
identify widespread patterns of retaliation against employees for filing internal
grievances complaining of gender discrimination, there was no evidence that other
existing federal remedies were insufficient to enforce the Constitution, and section
2000e-3 is not congruent and proportional to the injury being prevented. See Florida
Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 635-48
(1999) (articulating the elements required for Congress to validly abrogate a state's
sovereign immunity). However, this Circuit has consistently held that Congress
validly abrogated the Eleventh Amendment with the enactment of Title VII. See, e.g.,
Maitland v. Univ. of Minn., 260 F.3d 959, 964 (8th Cir. 2001) (addressing Title VII
sex discrimination claims); Okruhlik v. Univ. of Ark., 255 F.3d 615, 626-27 (8th Cir.
2001) ("[Congress] validly abrogated the Eleventh Amendment for claims of
disparate treatment and impact on the basis of gender and race."); Winbush v. Iowa,
66 F.3d 1471, 1483 (8th Cir. 1995) (holding that Congress exercised its power under
the Fourteenth Amendment to abrogate broadly states' Eleventh Amendment
immunity to suits under Title VII, and courts have the power to award prejudgment
interest against state defendants under Title VII accordingly).

        Accordingly, the retaliation provision of Title VII is an adequate exercise of
Congress' authority under section 5 of the Fourteenth Amendment. The fact that
Congress did not specifically note in the legislative record a widespread pattern of
retaliatory discharge by the states is not dispositive because such a specific finding
is not necessarily determinative of the issue. Okruhlik, 255 F.3d at 624 (citing
Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. at 646). Such a parsing
of the legislative findings with regard to Title VII is unnecessary. Maitland, 260 F.3d
at 965. "Title VII was enacted and amended in accord with the strictures of Section

                                         -6-
5." Id. In enacting and amending Title VII, Congress "held extensive hearings and
received numerous reports detailing racial and gender discrimination by the states."
Okruhlik, 255 F.3d at 625. As such, Appellants' claim that the district court lacked
jurisdiction over Warren's claim of retaliation under Title VII fails.

      B.     JAML - Retaliation Claim

       Appellants also argue that the district court should have granted their motion
for judgment as a matter of law on Count II because the evidence as to causation was
insufficient. We review a district court's denial of JAML de novo, applying the same
standards used by the district court. Phillips v. Union Pacific R.R. Co., 216 F.3d 703,
705-06 (8th Cir. 2000). "In making this determination, we view all facts in the light
most favorable to the non-moving party, giving her the benefit of all reasonable
inferences." Id. at 706. We will reverse the district court only when the evidence is
susceptible to no reasonable interpretation supporting the verdict. Jaros v. LodgeNet
Entm't Corp., 294 F.3d 960, 964 (8th Cir. 2002). Because Warren's termination
occurred approximately four and one-half years after she filed her grievance
regarding the scheduling inadequacies, Appellants claim there was no causal
connection between the two as a matter of law.

       The key in our consideration is that Warren's evidence supporting her claim of
retaliation was not just based on timing, she also provided direct and circumstantial
evidence that her termination was retaliatory, and that it was the end result of an
ongoing pattern of retaliatory behavior. For example, there was testimony supporting
Warren's contention that Gibbons treated her disparately during the course of his
supervision, that this unfavorable treatment was directly tied to Warren's grievance,
that Prejean and Gibbons acted in concert during the ultimate investigation of
Warren, and that she was denied a promotion for which she was interviewed by
Prejean, Gibbons, and one other employee. Accordingly, the district court correctly
denied Appellants' motion for JAML on Warren's Title VII retaliation claim.

                                         -7-
      C.     Jury Instructions

       Appellants also make several arguments with respect to jury instructions. We
review the jury instructions given by a district court for an abuse of discretion. See,
e.g., B&B Hardware, Inc. v. Hargis Indus., Inc., 252 F.3d 1010, 1012-13 (8th Cir.
2001) (emphasizing the district court's broad discretion in instructing the jury, and
recognizing that jury instructions do not need to be technically perfect or even a
model of clarity). Our review is limited to whether the jury instructions, taken as a
whole, "'fairly and adequately represent the evidence and applicable law in light of
the issues presented to the jury in a particular case.'" Ford v. GACS, Inc., 265 F.3d
670, 679 (8th Cir. 2001) (quoting St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d
587, 594 (8th Cir. 2001)). "Moreover, even where a jury instruction is erroneously
given to the jury, reversal is warranted only where the error affects the substantial
rights of the parties." Brown v. Sandals Resorts Int'l, 284 F.3d 949, 953 (8th Cir.
2002) (Beam, J., dissenting). In other words, the error must be prejudicial. Cross v.
Cleaver, 142 F.3d 1059, 1067 (8th Cir. 1998).

       Appellants claim that the district court did not correctly instruct the jury on the
proper causation standard on the retaliation claim. Instructions seven, eight and
twelve are at issue in this regard according to Appellants. In conference, Appellants
objected to instructions seven and twelve, but not instruction eight. As to instruction
eight, we review for plain error. Id. ("[W]here a party fails to make a timely and
adequate objection before the trial court to a matter subsequently raised on appeal,
this court will review the matter only for 'plain error.'") (quoting Rush v. Smith, 56
F.3d 918, 922 (8th Cir. 1995) (en banc)).

      Instructions seven and eight deal with Warren's claim of gender discrimination.
Instruction twelve addresses Warren's claim of unlawful retaliation. We are unsure
what exactly Appellants claim as error with instructions seven and eight because the
body of the brief only addresses instruction twelve, merely including seven and eight

                                           -8-
in the title paragraph. We presume, based on our reading of the argument regarding
instruction twelve, that the alleged error lies within the "motivating factor" language
found in each of these instructions and we will review seven, eight, and twelve from
this perspective.

       Appellants argue that the causation standard in retaliation cases requires a "but
for" relation. This argument is based upon our prior language, which states that
"'[e]ven if the protected conduct is a substantial element in the decision to terminate
the employee, the employer will not be liable if the employee would have been
discharged in the absence of the protected conduct.'" Akeyo v. O'Hanlon, 75 F.3d
370, 373 (8th Cir. 1996) (quoting Maness v. Star-Kist Foods, Inc., 7 F.3d 704, 708
(8th Cir. 1994)) (alteration in original). This analysis is unfounded.

       Under Title VII, in order to establish a prima facie case of retaliation and get
a claim before a jury, a plaintiff must show, among other elements, that there was a
causal connection between the adverse employment action and the protected activity.
Smith v. Riceland Foods, Inc., 151 F.3d 813, 818 (8th Cir. 1998). Instructing the jury
that Warren must prove by a preponderance of the evidence that her sex and
grievance were motivating factors in DYS' decision to discharge her, fairly and
adequately reflects the applicable law of this circuit. We conclude that the district
court appropriately instructed the jury in instructions seven, eight and twelve. There
was no plain error or abuse of discretion.

       Appellants further claim that the district court erred in refusing their jury
instruction A and giving jury instruction nine. Appellants offered instruction A to
make it clear to the jury that Prejean, as an individual, was liable, if at all, for acts and
deprivations that he committed and that he could not be found liable because of the
conduct of others working at the Sears facility, citing Madewell v. Roberts, 909 F.2d
1203, 1208 (8th Cir. 1990). The district court denied the inclusion of instruction A
and read instruction nine to the jury instead.

                                            -9-
       Madewell stands for the proposition that "[l]iability under § 1983 requires a
causal link to, and direct responsibility for, the deprivation of rights." Id. Instruction
nine reads:

      Defendant DYS may act only through natural persons as its agents or
      employees and in general any agent or employee of DYS may bind DYS
      by his acts and declarations made while acting in the scope of his
      authority delegated to him by DYS or while within the scope of his
      duties as an employee of DYS.

       Appellants argue that instruction nine erroneously told the jury that any
employee of DYS may bind DYS as agents, and invited the jury to place liability on
Prejean for acts or omissions of other DYS employees. Warren responds that
instruction nine was necessary because Appellants consistently attempted to mislead
the jury by suggesting that DYS could only be held liable for the discriminatory acts
of Seidner, the facility personnel manager, and not for those of other supervisory
employees involved in the termination process.

       "This Circuit has previously recognized [the] application of agency principles
in the Title VII context." Kramer v. Logan County Sch. Dist. No. R-1, 157 F.3d 620,
624 (8th Cir. 1998) (citing Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051,
1060 (8th Cir. 1993)). For example, while it is true that stray remarks in the
workplace do not necessarily create liability for employers, liability does attach if
discrimination played a role in the ultimate decisionmaking process, thus creating
potential liability for employers due to certain acts of their employees. Gagnon v.
Sprint Corp., 284 F.3d 839, 848-49 (8th Cir. 2002).

       We cannot say the district court abused its discretion in giving instruction nine
to the jury. Instruction nine deals directly with the liability of DYS. There is ample
evidence to infer that those with whom DYS invested supervisory authority engaged
in discriminatory actions. Instruction nine merely explains how those actions are

                                          -10-
attributable to DYS. Viewing the instructions as a whole, as we must, we hold that
they fairly and adequately represent the evidence and applicable law of this circuit in
light of the issues presented to the jury. Ford, 265 F.3d at 679. Notwithstanding this
determination, we find no prejudicial effect from the inclusion of instruction nine, as
instructions fifteen, sixteen, and seventeen set forth guidelines for determining
Prejean's individual liability, and there was ample evidence introduced at trial of
Prejean's direct participation in the events leading up to and including Warren's
termination. Accordingly, Appellants' claims of instructional error are without merit.

      D.     JAML - Equal Protection Claim

       We next move to Appellants' contention that the district court should have
granted JAML in their favor on Warren's equal protection claim because there was
insufficient evidence to go before the jury. Our review of the record leads us to
conclude that this claim is also without merit. As before, we review the district
court's denial of JAML de novo. Phillips, 216 F.3d at 705-06. Appellants argue that
there was insufficient proof that Prejean terminated Warren, and that Warren did not
identify similarly situated male employees that Prejean allegedly disciplined
differently than her.

       The fact that Seidner was the individual who signed off on Warren's
termination does not necessarily mean that Prejean did not play a significant role in
the termination process. "Courts look beyond the moment a decision was made in
order to determine whether statements or comments made by other managerial
employees played a role in the ultimate decisionmaking process." Gagnon, 284 F.3d
at 848. Warren presented significant evidence that Prejean had supervisory authority
over her at one time and that Prejean was actively involved in the decision to
terminate her. In fact there was testimony from several witnesses at trial that Prejean
investigated the allegations against Warren and that Seidner relied on the integrity of



                                         -11-
that investigation.2 Consequently, the fact that Seidner's signature was on Warren's
termination papers is not dispositive.

        Warren also presented sufficient evidence of other similarly situated male
employees at the Sears facility who were treated differently. This evidence primarily
circulates around Doug Block, J.B. Hayes, and Ron Davis, all employees at the Sears
facility. "To show that employees are similarly situated, a plaintiff need only
establish that he or she was treated differently than other employees whose violations
were of 'comparable seriousness.'" Lynn v. Deaconess Med. Ctr., 160 F.3d 484, 488
(8th Cir. 1998). Appellants claim that Hayes was disciplined for verbal sexual
harassment, Davis engaged in verbal sexual harassment and Block was sleeping once
at night while youths were asleep, and that each of these instances were quite distinct
from the allegations facing Warren. However, Warren presented testimony from
Block that he was accused of sleeping on two or three occasions, another employee
testified that he reported Block sleeping as many as nine times, and that Hayes was
accused of sexual harassment five times. The most significant factual dispute
includes Davis. Warren presented evidence that Davis had been accused of physical
abuse of youth at the facility on numerous occasions, and that he engaged in
emotional abuse of the youths on several occasions as well. Without belaboring the
point, it is clear that there was significant support for Warren's claim that other males,


      2
       Under the same analysis, Prejean is not entitled to qualified immunity. Not
only have we addressed the fact that Seidner's signature on the termination sheet does
not necessarily insulate those who played a key role in the decisionmaking process,
Gagnon, 284 F.3d at 848, there was ample evidence that Prejean actively participated
in the termination process. Therefore, Warren did state a claim against Prejean.
Further, "[o]fficials are entitled to qualified immunity only to the extent that 'their
conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.'" Hedges v. Poletis, 177 F.3d 1071, 1074 (8th
Cir. 1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Prejean's
conduct violated a clearly established statutory or constitutional right of which a
reasonable facility manager would have known in November 1995.

                                          -12-
similarly situated, received different treatment. Taken as a whole, there was
sufficient evidence as a matter of law to put this before the jury, and they held in
Warren's favor on this question of fact as conflicts in the evidence are for the jury to
decide. See Hathaway v. Runyon, 132 F.3d 1214, 1225 (8th Cir. 1997). As such, we
find no error.

      E.     JAML - Pretext and Gender Discrimination

      We disagree with Appellants' claim that the district court should have granted
JAML on Warren's Counts I and II. Appellants claim there was insufficient evidence
of pretext on Counts I and II, and gender discrimination on Count I. Much of
Appellants' claim rests on the credibility of Seidner's testimony where he states his
reasons for Warren's termination. While this is probative evidence supporting
Appellants' position, it was not the only testimony before the jury and this court will
not engage in a weighing or evaluation of the evidence, as these are jury functions.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

      Along with circumstantial evidence of Appellants' discriminatory acts in
general, Warren presented evidence that the allegations against her were fabricated
and that Appellants asked witnesses to falsify statements. "[A]lthough the court
should review the record as a whole, it must disregard all evidence favorable to the
moving party that the jury is not required to believe." Id. at 151. Applying this
principle, we affirm the judgment of the district court denying Appellants' motion for
judgment as a matter of law.

      F.     JAML - Emotional Distress, Lost Wages, Punitive Damages

       The balance of the arguments offered by Appellants concerning the district
court's denial of their motions for judgment as a matter of law cover the emotional
distress and lost wages verdicts for Counts I, II and III; and the punitive damages

                                         -13-
award for Count III. Again, viewing the evidence in the light most favorable to
Warren, we affirm the district court. Id. at 150.

       As Appellants recognize, Warren presented evidence of emotional distress
including her own testimony, the testimony of her counselor and also the testimony
of her aunt. This testimony revealed the time period in which the alleged
discrimination and retaliatory acts occurred, as well as the specific effect these events
had on Warren both physically and emotionally. After carefully reviewing the record,
this evidence was sufficient to put the issue before the jury. The jury drew their own
conclusions accordingly and we will not disturb this finding. See Ross v. Douglas
Cty., 234 F.3d 391, 397 (8th Cir. 2000) (affirming an award of $100,000 for
emotional distress resulting from emotional and financial strain after leaving hostile
work environment).

       As for lost wages, Appellants claim that there was no evidentiary support for
Warren's testimony of the dollar amount of her per month projected salary in 1996-
2000 or for the estimated retirement benefits. Appellants essentially object to the
content of Warren's Exhibit 81, which sets forth her projected DYS annual salary as
well as projected health and retirement benefits. However, Appellants did not object
to the introduction of this evidence at trial. As a result, we review this evidence for
plain error, and find none.

       Finally, addressing the punitive damages awarded in this case, we agree with
the well-reasoned opinion of the district court set forth in its September 28, 2001,
order. "[A]ppellate review of the trial court's determination in this regard is limited
to an abuse of discretion." Grabinski v. Blue Springs Ford Sales, Inc., 136 F.3d 565,
572 (8th Cir. 1998). After carefully reviewing the evidence, we conclude that
$100,000 is not grossly excessive and the district court did not abuse its discretion in
this regard. See Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1062 (8th Cir.



                                          -14-
1993) (applying a clear abuse of discretion standard and upholding an award of
$400,000).

      G.     Attorney Fees

       Appellants further ask us to vacate the fee awarded Warren's counsel, claiming
that 825 hours is excessive, and that it included 262 hours of pre-litigation work. A
district court's award of attorney fees is reviewed for abuse of discretion. Webner v.
Titan Distrib., Inc., 267 F.3d 828, 838 (8th Cir. 2001). "The starting point in
determining attorney fees is the lodestar, which is calculated by multiplying the
number of hours expended by the reasonable hourly rates." Fish v. St. Cloud State
Univ., 295 F.3d 849, 851 (8th Cir. 2002) (citation omitted). Appellants do not
contend that the hourly rates are out of line in this case, but that the total number of
hours were excessive, redundant or otherwise unnecessary. However, the district
court was in the best position to assess the work done by counsel, spending a great
deal of time setting forth the basis for its conclusion regarding fees in this case in its
September 28, 2001, order and we rely on its well-reasoned analysis in our
affirmation. See 8th Cir. R. 47B.

      H.     Motion for New Trial

       Finally, Appellants contend that the district court wrongly denied their motion
for a new trial, arguing there was an instructional error and improper admission and
exclusion of evidence. "When a motion for new trial is based on rulings regarding
the admissibility of evidence, the district court will not be reversed absent a clear and
prejudicial abuse of discretion." Mattis v. Carlon Elec. Prods., 295 F.3d 856, 863 (8th
Cir. 2002) (citation omitted).

     The testimony in question includes the district court's exclusion of Marci
Legrand, who was to testify about instances of Warren's alleged misbehavior; Lesi

                                          -15-
Smith, who was to testify about the same; and the exclusion of all references to
Warren's State Personnel Advisory Board hearing. The alleged improperly admitted
testimony includes:

      1)     the crying testimony of Warren;
      2)     the testimony regarding the similarly-situated males;
      3)     the testimony of Melissa Swift and Frederick Hackman concerning the
             accusatory statements provided by Sears youth that Prejean claims was
             prejudicial;
      4)     the testimony of Aunt Pruitt who was allegedly first disclosed to Prejean
             on the pre-trial witness list;
      5)     the testimony of Charmagne Schneider that Prejean claims was based
             exclusively on hearsay;
      6)     Plaintiff's Exhibit 25, which was a procedure dealing with
             investigations;
      7)     all testimony concerning Warren's 1994 application for a teaching job;
      8)     the testimony of Marie Patterson regarding her opinion of Prejean's
             preference in women; and
      9)     the testimony of Cathie Gilliland, Warren's counselor, which Prejean
             claims was improper expert testimony.

       Appellants also challenge the fact that the district court failed to hold a Rule
412 hearing concerning the sexual behavior of Westerman and improperly admitted
Plaintiff's Exhibit 81 without proper foundation.3

      We find no abuse of discretion by the district court on each of these rulings but
pause to write further on a few of the above-mentioned contentions. For example,
Appellants claim that both Legrand and Smith should have been allowed to testify


      3
       We previously addressed the issue concerning Plantiff's Exhibit 81 in section
F of this opinion. Not only did Prejean fail to object to the admission of this
document at trial, but Warren proceeded to set forth its foundation at the suggestion
of Prejean.

                                         -16-
about Warren's alleged inappropriate conduct and to raise issues of credibility as to
Warren's prior testimony. Legrand gave information to DYS nearly eight months
after Warren was terminated and the district court concluded that because DYS did
not rely upon Legrand's information, her testimony was irrelevant. Smith was
excluded because her testimony also dealt with information that was not included in
DYS' file nor was it part of the decision to terminate Warren. The district court
determined that this testimony was after-acquired evidence and irrelevant as to the
information known to DYS at the time of the termination. We agree.

       The district court allowed Warren to elicit the testimony of Swift and Hackman
under Federal Rule of Evidence 807. Swift and Hackman were each counselors at
Sears who worked with the youths that made allegations against Warren. Their
testimony supported the inference that the youths were, in fact, coerced into making
the allegations against Warren or were rewarded for doing so. Warren introduced this
testimony to counteract the written statements of the youths introduced at trial by
Appellants accusing Warren of inappropriate behavior. The district court received
the out-of-court statements from the youths purportedly as proof of the state of mind
of Appellants, and not, apparently, for the truth of the matters stated. However, this
was possibly error since the relevance of the evidence very likely depended upon the
truth of the statements offered. But, we need not decide this question. Appellants
successfully introduced these damaging statements, over timely objection, and now
challenge Warren's right to complete the scenario. Warren properly attacked the
credibility of the youths' statements through testimony from the youths' counselors
tending to demonstrate the actual state of mind of the declarants, the youths
themselves, at the time they signed the declarations. Whether or not the statements
offered by Appellants were properly received, the district court did not abuse its
discretion in receiving Warren's responsive evidence.

      Appellants further claim that the district court should have held a Rule 412
hearing regarding the sexual behavior of Westerman. Under Rule 412(a) "[e]vidence

                                        -17-
offered to prove that any alleged victim engaged in other sexual behavior" is
inadmissible. However, an exception exists in Rule 412(b)(2), which states that "[i]n
a civil case, evidence offered to prove the sexual behavior or sexual predisposition
of any alleged victim is admissible if it is otherwise admissible under these rules and
its probative value substantially outweighs the danger of harm to any victim and of
unfair prejudice to any party."

      Conceding the fact that Rule 412 applies to sexual harassment lawsuits, see
Beard v. Flying J, Inc., 266 F.3d 792, 801 (8th Cir. 2001) ("we have not previously
determined whether Rule 412 applies to sexual harassment lawsuits"), Warren's
testimony about Westerman's statements concerning his own sexual history and
preferences is not "other sexual behavior" excluded by Rule 412. By its introduction,
Warren merely attempted to discredit Westerman's claims that Warren had sexually
harassed him. This evidence dealt only with the relationship between Warren and
Westerman and no "other" sexual behavior.

       Additionally, Rule 412(b)(2) employs a balancing test rather than the specific
exceptions stated in 412(b)(1). Assuming for the sake of clarification that the
testimony at issue fell within Rule 412 as evidence of other sexual behavior, which
we do not, it would be admissible under the balancing test. DYS had a lengthy and
specific statement from Westerman discussing Westerman's discomfort with alleged
advances made by Warren on several occasions. The relationship between Warren
and Westerman was in dispute. As such, Warren could certainly present her own
evidence about their interactions during the specific times at issue, and whether any
alleged advance would have been welcomed by Westerman under the circumstances.
The probative value of this evidence substantially outweighs any unfair prejudice that
it might produce. The district court conducted a thoughtful review of this evidence
and its admittance was not an abuse of discretion.




                                         -18-
      I.     Warren's Appeal

      Warren also appeals, claiming that the trial court erred in amending the
judgment to reduce the compensatory damage awards.4 Warren asks that the original
jury verdict be reinstated. This argument fails because the district court did not
reduce the award per se. Rather, the court determined that instead of holding DYS
and Prejean each liable for Warren's compensable injury, they are instead jointly and
severally liable. As a result, Warren is awarded $210,000 jointly and severally from
DYS and Prejean for lost wages and other damages on her claims of sex
discrimination and retaliation, in addition to the award of attorney fees and punitive
damages. We review this amended judgment for abuse of discretion. Grabinski, 136
F.3d at 572.

       During closing arguments, Warren encouraged the jury to find $60,000 in
actual damages and three times that amount, or $180,000 in other damages. On the
claim against Prejean individually, Warren pointed out the punitive damage claim to
the jury and explained that punitive awards are awarded for extraordinary misconduct
such as that she claimed to have shown to the jury at trial. The jury, in fact, awarded
Warren what she requested, and the district court correctly amended the judgment to
reflect the appropriate amount due Warren. We find that the district court did not
abuse its discretion and affirm the amended judgment. See Jackson v. City of St.
Louis, 220 F.3d 894, 897 (8th Cir. 2000).




      4
        We note that Warren has since abandoned her argument that the court should
overturn Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 325 (8th Cir. 1993)
(factoring fees for computer legal research as a component of the attorney's hourly
rate), thus we do not entertain such claim today.

                                         -19-
III.   CONCLUSION

      For the reasons set forth in this opinion, we affirm the district court in all
respects.

       A true copy.

             Attest:

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




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