                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2297
                                   ___________

Denise R. Hite,                       *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Southern District of Iowa.
Vermeer Manufacturing Company;        *
Rick Leedom,                          *
                                      *
           Defendants - Appellants. *
                                 ___________

                             Submitted: January 11, 2006
                                 Filed: May 9, 2006
                                 ___________

Before MURPHY, HANSEN and SMITH, Circuit Judges.
                          ___________

SMITH, Circuit Judge.

       Denise R. Hite sued her employer, Vermeer Manufacturing Company
("Vermeer") and her supervisor, Rick Leedom, for retaliation in violation of the
Family Medical Leave Act (FMLA). The jury returned a verdict in favor of Hite and
awarded her back pay. The district court awarded Hite front pay, liquidated damages
plus interest, and attorney's fees. The district court1 subsequently denied Vermeer's
and Leedom's motions for judgment as a matter of law or for a new trial and to amend


      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
or alter the judgment. Vermeer and Leedom appeal the denial of their post-trial
motions. We affirm.

                                      I. Background
       We recite the facts in the light most favorable to the jury's verdict. United States
v. Selwyn, 398 F.3d 1064, 1065 (8th Cir. 2005).

      Denise Hite began working for Vermeer on December 15, 1997, as a drill
operator and progressed to CNC lathe machine operator in May 1999. Prior to joining
Vermeer, Hite had been diagnosed with major depressive disorder by her physician,
Dr. Nancy Vander Broek. Major depressive episodes hampered Hite's work ability.
Beginning in January 2000, Hite exercised her rights to take leave under the FMLA
to address the severe depression bouts which recurred periodically in 2000 and 2001.

       When Hite needed to use FMLA leave, she would contact her supervisor
directly or leave a message for him prior to the start of her shift. In addition, Hite
would notify Pam Montegna, Vermeer's FMLA Coordinator. Hite would then fill out
a short-term disability application with Dr. Vander Broek to give to Montegna. Dr.
Vander Broek would also certify when Hite could return to work.

       In February 2001, Dr. Vander Broek recommended intermittent FMLA leave
for Hite because of the sporadic nature of her illness. Intermittent leave enabled Hite
to use FMLA leave for periods of time less than an entire shift. Hite used this
intermittent FMLA leave when she arrived at work 15 or 30 minutes late or wanted
to leave work early due to her condition.

       Hite's difficulty exercising FMLA leave began when Rick Leedom became
Hite's supervisor. From the beginning of his supervision, Leedom reacted negatively
to Hite's use of FMLA leave. When Hite missed work, Leedom would question
whether she was really sick under the FMLA guidelines. Leedom would call Hite into

                                           -2-
his office and tell her he "couldn't see anything wrong with her" and therefore she
"needed to be at work." He also said that because of her absences, her production
levels would be called into question. In addition, Leedom commented to his assistant
that FMLA was "bad for the company" and complained regularly to Martin Van Wyk,
Vermeer's Human Resources Manager, and Montegna about Hite's use of FMLA
leave.

       Leedom also routinely transferred Hite to different machines upon her return
from leave. The machines were of a lower classification than the CNC lathe machine
and were more difficult for Hite to operate. Leedom informed Hite that he was
transferring her because "the CNC lathe was a critical machine that needed to be run
every day, every shift, 24 hours a day" and because of her FMLA leave. When Hite
would complain to Van Wyk about Leedom moving her, she would eventually be
returned to the CNC lathe machine; however, Leedom continued to transfer her to
different machines. Her pay was never adversely affected by the transfers.

      During employee evaluations on December 6, 2000, Leedom informed Hite that
he would permanently remove her from the CNC lathe machine if she continued to use
FMLA leave. The evaluation noted that Hite had seven unexcused absences, which
were days that Hite used her FMLA leave. Leedom told Hite that if she continued to
use FMLA leave, her job at Vermeer would be in jeopardy.

       During January 2001, Hite used her vacation time because she was ill and
wanted to receive pay. Vermeer's policy required the employee to call in and request
a vacation day. The employee received the vacation day the same day she requested
it. Pursuant to the policy, Hite called in on three consecutive days asking for vacation
time. On the fourth day, however, Leedom called back and left a voice message on
Hite's answering machine, stating that her vacation time was denied and that she must
report to work the next day or she would lose her job. Leedom told Hite that for the
rest of 2001, she had to give a 30-day notice to use her vacation days. Hite requested

                                          -3-
vacation leave the day her grandfather died but was denied because of the 30-day
notice Leedom imposed. Also Leedom disciplined Hite for every sick day that was not
covered by FMLA, vacation time, or personal time, something that was solely at
Leedom's discretion and for which he did not punish other employees.

       Hite frequently complained to Van Wyk and Montegna about Leedom's reaction
to her use of FMLA leave. Leedom treated Hite differently than other employees by
citing her for minor rule violations not commonly used with other workers. After one
such citation, Hite met with Leedom and Van Wyk regarding the disciplinary action.
Hite refused to sign the disciplinary form. After the meeting, Hite had an anxiety
attack and went to the FMLA office to meet with Montegna. Hite told Montegna that
Leedom and Van Wyk were making it impossible for her to be at work and were
harassing her about using FMLA leave. She expressed her fear that she would lose her
job because of her complaints, as well as her use of FMLA leave. Montegna told Hite
she would talk to Van Wyk about Hite's concerns. After that meeting, Hite went to see
Dr. Vander Broek and took two weeks FMLA leave.

       When Hite returned to work, she had another meeting with Montegna and Van
Wyk. Prior to the meeting, Leedom requested that Van Wyk remove Hite from the
CNC lathe machine because of her absences and their effect on productivity. During
the meeting, Montegna, Van Wyk, and Hite decided that if Hite would agree to move
to a different job, "all harassment and retaliation by Rick Leedom against [Hite] for
[her] disability would be stopped." While the new machine Hite operated was more
difficult for her to operate and was physically too demanding for her, she worked at
the machine until her termination.

      After Hite's transfer, Becky Nichols, a contract nurse hired by Vermeer,
frequently contacted Dr. Vander Broek seeking "clarification" of Hite's use of FMLA




                                         -4-
leave.2 Hite never gave anyone at Vermeer permission to contact Dr. Vander Broek
seeking information about her use of FMLA leave.

       Hite's last use of FMLA leave was on June 14, 2001. About two months later,
Hite requested and received permission from Leedom to place a cell phone call on
company property.3 On the same day, Leedom informed Human Resources Manager
Cornelis Van Walbeek and, according to Van Walbeek's testimony, recommended to
Van Walbeek that he terminate Hite. Subsequently, Van Walbeek summarized Hite's
disciplinary history, taking into account Hite's entire disciplinary history contrary to
company practice of only considering one year. Van Walbeek's review of Hite's
attendance records familiarized him with Hite's FMLA usage.

       Van Walbeek, Leedom, and Hite met on August 28, 2001. At the meeting, Hite
was informed that she was being terminated for using her cell phone outside the plant
and away from her machine during company time. When Hite tried to explain to Van
Walbeek that Leedom gave her permission to use her cell phone prior to making the
call, Van Walbeek responded that he did not care. In addition to the alleged cell phone
policy violation, Van Walbeek considered additional disciplinary actions in


      2
        The FMLA prohibits Vermeer, an employer, from directly contacting an
employee's doctor. Under the FMLA, Vermeer was to keep confidential all of its
employees' medical information; however, it allowed Nichols to access Hite's
confidential medical information because Nichols was an on-site medical advisor.
Montegna testified that the regulations permitted Vermeer to have a person as the
employer's representative contact the doctor for clarification, and that she reviewed
this with her United States Department of Labor contact.
      3
        Vermeer had no written cell phone usage policy at the time, and no other
employee had ever been fired for improper use of a cell phone. Vermeer, however,
had "communicated [its] expectations to employees" about cell phone use, telling its
employees at departmental meetings that they should not use their cell phones on
company time unless a supervisor approved it. At Vermeer, a policy violation can
result in disciplinary action, including termination.

                                          -5-
determining to terminate Hite's employment. As of August 24, 2001, Hite had
received written warnings and received coaching and counseling ("C&C") regarding
attendance, safety, and conduct on eleven occasions. Only four of the eleven
disciplinary actions occurred within a year of her termination date.

       Hite filed suit against Vermeer and Rick Leedom, alleging retaliation under the
FMLA. At trial, Hite presented the testimony of Ruth Johnson and Stacy Wharton,
former Vermeer employees, about Vermeer's retaliatory practices. Johnson testified
that after she began taking FMLA leave for her anxiety disorder, she began having
disciplinary problems at Vermeer. Montegna told Johnson to "get [her] act together
or [she would] lose her job." Johnson testified that she was ultimately terminated as
a result of the FMLA absences. Similarly, Wharton testified that she experienced
adverse employment actions after using FMLA leave. Wharton also testified that her
father, a long-time supervisor at Vermeer, told her that Hite had been targeted for
termination because of her FMLA absences.

       The jury returned a verdict in favor of Hite, awarding her back pay in the
amount of $107,571.97. The district court subsequently awarded Hite $15,512.76 in
front pay, liquidated damages in an amount equal to that awarded by the jury for back
pay, $107,571.97, and attorney's fees and costs of $78,866.50. Vermeer and Leedom
filed motions for judgment as a matter of law or for a new trial and to amend or alter
the judgment. The district court denied their motions.

                                      II. Discussion
       Vermeer and Leedom raise three arguments on appeal: (1) that the district
court erred in finding that there was sufficient evidence of FMLA retaliation; (2)
that the district court erred in finding there was sufficient evidence to support the
award of liquidated damages plus interest; and (3) that the district court abused its
discretion in refusing to amend the judgment to reduce the back pay award.



                                         -6-
                                A. FMLA Retaliation Claim
       Vermeer and Leedom first argue that the district court should have granted their
motion for judgment as a matter of law because insufficient evidence supports a
finding of a causal link between Vermeer's termination of Hite and her use of FMLA
leave, or, in the alternative, insufficient evidence exists to support a finding of pretext.
We review a district court's denial of judgment as a matter of law de novo. Kipp v.
Mo. Highway & Transp. Comm'n, 280 F.3d 893, 896 (8th Cir. 2002). We review a
court's denial of a motion for a new trial for an abuse of discretion. Adzick v. UNUM
Life Ins. Co. of Am., 351 F.3d 883, 886 (8th Cir. 2003).

       "Under [the] FMLA, eligible employees are entitled to take leave from work for
certain family or medical reasons, including a 'serious health condition that makes the
employee unable to perform the functions of the position of such employee.'" Cooper
v. Olin Corp., Winchester Div., 246 F.3d 1083, 1090 (8th Cir. 2001) (quoting 29
U.S.C. § 2612(a)(1); Reynolds v. Phillips & Temro Indust., Inc., 195 F.3d 411, 413
(8th Cir. 1999)). "The FMLA provides eligible employees up to 12 workweeks of
unpaid leave during any 12-month period." Darby v. Bratch, 287 F.3d 673, 679 (8th
Cir. 2002) (citing 29 U.S.C. § 2612). It prohibits employers from discriminating or
"retaliating" against an employee for asserting her rights under the Act. Id. (citing 29
U.S.C. § 2612(a)(2)). Therefore, an employer may not consider "an employee's use
of FMLA leave as a negative factor in an employment action." Id. "Basing an adverse
employment action on an employee's use of leave, or in other words, retaliation for
exercise of Leave Act rights, is therefore actionable." Smith v. Allen Health Sys., Inc.,
302 F.3d 827, 832 (8th Cir. 2002).


       An employee can prove retaliation through circumstantial evidence, using the
McDonnell Douglas burden-shifting analysis. Id. (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–03 (1973)). First, the employee must establish a prima
facie case of retaliatory discrimination by showing that "she exercised rights afforded
by the Act, that she suffered an adverse employment action, and that there was a

                                            -7-
causal connection between her exercise of rights and the adverse employment action."
Id. Second, once the employee establishes a prima facie case, the burden shifts to the
employer to article a legitimate, nondiscriminatory reason for its actions. Id. at 833.
Finally, the burden shifts back to the employee to demonstrate that the "employer's
proffered reason is pretextual." Id. The employee must present evidence that "(1)
creates a question of fact regarding whether [the defendant's] reason was pretextual
and (2) creates a reasonable inference that [the defendant] acted in retaliation." Id.


        We recognize that "[w]hen the parties have developed a full trial record, we are
not concerned with plaintiff's prima facie case." EEOC v. Kohler Co., 335 F.3d 766,
772 (8th Cir. 2003). Instead, once the jury makes a finding of retaliation "and that
judgment is being considered on appeal, the McDonnell Douglas presumptions fade
away, and the appellate court should simply study the record with a view to
determining whether the evidence is sufficient to support whatever finding was made
at trial." Id. at 773 (internal quotations and citation omitted). We must affirm the jury's
verdict "unless, viewing the evidence in the light most favorable to the prevailing
party, we conclude that a reasonable jury could not have found for that party." Id. at
772 (internal quotations and citation omitted). We do not lightly set aside a jury's
verdict. Id.


      "Thus, the principal issue before us is whether [Hite] produced sufficient
evidence to allow a reasonable jury to find [that Vermeer] retaliated against [her]." Id.
at 773.


                                      1. Causation
      Vermeer questions whether Hite sufficiently established causation. We evaluate
the causal-connection evidence "in light of all the evidence in the record." Id. at 773
n.7. To establish a causal link between the employee's exercise of FMLA rights and


                                           -8-
her termination, the employee must prove "that an employer's 'retaliatory motive
played a part in the adverse employment action.'" Kipp, 280 F.3d at 897 (quoting
Sumner v. United States Postal Serv., 899 F.2d 203, 208–09 (2d Cir. 1990)).
"[E]vidence that gives rise to 'an inference of a retaliatory motive' on the part of the
employer is sufficient to establish a causal link." Id. (quoting Rath v. Selection
Research, Inc., 978 F.2d 1087, 1090 (8th Cir. 1992); Couty v. Dole, 886 F.2d 147, 148
(8th Cir. 1989)).


       An employee can establish a causal link between her protected activity and the
adverse employment action through "the timing of the two events." Eliserio v. United
Steelworkers of Am., 398 F.3d 1071, 1079 (8th Cir. 2005). "A pattern of adverse
actions that occur just after protected activity can supply the extra quantum of
evidence to satisfy the causation requirement." Smith, 302 F.3d at 832. The mere
coincidence of timing, however, is rarely sufficient to establish the causation element.
Haas v. Kelly Serv., Inc., 409 F.3d 1030, 1037 (8th Cir. 2005). Cases in which we
have determined that temporal proximity alone was sufficient to create an inference
of the causal link "have uniformly held that the temporal proximity must be 'very
close.'" Wallace v. Sparks Health Sys., 415 F.3d 853, 859 (8th Cir. 2005).


       Even if temporal proximity alone is insufficient to establish causation, the
employee may attempt to prove causation by providing evidence of the employer's
discriminatory comments. See Watson v. O'Neill, 365 F.3d 609, 613 (8th Cir. 2004)
(finding a causal connection between the employee's protected activity and the adverse
employment action where one supervisor said that he was not "going to let a nigger
manage my bitches," while another supervisor commented that the employee "would
never excel in the agency" because he assisted in a 1993 employment discrimination
case against the supervisor). Furthermore, where an ultimate decisionmaker relies on
the discriminatory comments of another employee or supervisor in deciding to



                                          -9-
terminate the employee, the employee may be able to establish a causal connection.
See Fast v. Southern Union Co., Inc., 149 F.3d 885, 891 (8th Cir. 1998).


       An employee may attempt to "shorten the gap between her protected activity
and the adverse action by showing that shortly after she [engaged in the protected
activity, the employer] took escalating adverse and retaliatory action against her."
Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 503 (8th Cir. 2005). When the
employee presents such background information, we may consider it as evidence of
discrimination. Henderson v. Ford Motor Co., 403 F.3d 1026, 1037 (8th Cir. 2005);
see also Bassett v. City of Minneapolis, 211 F.3d 1097, 1105 (8th Cir. 2000) (holding
that excessive pattern of protected activity followed by disciplinary measures
established causation); Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997)
(declining to decide whether "each act in itself constituted actionable 'adverse
employment action' because [the employee] essentially claimed that [the employer]
had systematically retaliated against him, that is, that all the acts were taken in
response to his filing the employment discrimination charge and were thus connected
to one another").


      We find that sufficient evidence supports the jury's finding of a causal link
between Vermeer's termination of Hite and her use of FMLA leave. While Hite last
used her FMLA leave two months before her termination, she presented additional
evidence other than temporal proximity to establish the causation element.


       First, as in Watson, Leedom made comments to Hite in which he specifically
told her she would lose her job if she continued to use FMLA leave. Furthermore, Van
Walbeek, the ultimate decisionmaker, testified that Leedom recommended Hite's
termination and that while he "couldn't recall" whether he and Leedom discussed
Hite's use of FMLA leave, he was aware of all the FMLA time Hite had used when


                                        -10-
he terminated her. Based on Van Walbeek's testimony, the jury could infer that Van
Walbeek did rely, at least in part, on Hite's FMLA usage in terminating her.


       Second, Hite presented evidence that Vermeer and Leedom took escalating
retaliatory action against her for using FMLA leave. Each time Hite returned from
FMLA leave, Leedom questioned her about whether she really was sick under the
FMLA guidelines and spoke negatively of her use of FMLA leave. Leedom moved
Hite to different machines, telling her he was doing so because she used FMLA leave
and disciplined her for every sick day not covered by FMLA. In addition, he punished
her for returning late from break and not clocking out—activities that Johnson and
Wharton testified Vermeer normally did not punish. Hite was also the only employee
that Leedom required to give 30-days notice before using vacation days. Finally, Van
Wyk and Montegna admitted that Leedom had been punishing Hite for using FMLA
leave when they told Hite that Leedom's treatment of her would stop if she would
switch machines.


                                       2. Pretext
       "If the employer comes forward with evidence of a legitimate,
nondiscriminatory reason for its treatment of the employee, the employee must then
point to some evidence that the employer's proffered reason is pretextual." Smith, 302
F.3d at 833. The employee shows pretext by establishing that the employer's
"justification for the [adverse action] was unworthy of credence." Id. at 833–34.

       An employee can prove pretext in several ways. First, the employee can show
that the employer's proffered explanation has no basis in fact. Logan v. Liberty
Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005). "In appropriate circumstances,
the trier of fact can reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose." Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 143 (2000).


                                        -11-
       Also, the employee can prove pretext by showing that the employer varied from
its normal policy or practice to address the employee's situation. Erickson v. Farmland
Indus., Inc., 271 F.3d 718, 727 (8th Cir. 2001). For example, the employee could
show that the employer routinely treated similarly situated employees who were not
in the protected class more leniently. Smith, 302 F.3d at 835. Likewise, the employee
could demonstrate that she was discharged pursuant to an inconsistent policy.
Wallace, 415 F.3d at 860.

       If the employee presents strong evidence of a prima facie case, then such
evidence may establish pretext. Smith, 302 F.3d at 834. In addition, "the trier of fact
may still consider the evidence establishing the plaintiff's prima facie case 'and
inferences properly drawn therefrom . . . on the issue of whether the defendant's
explanation is pretextual.'" Reeves, 530 U.S. at 143 (quoting Tex. Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981)).

        We find that sufficient evidence exists to support a finding of pretext for
Vermeer's proffered justification for terminating Hite, which was that Hite was using
her cell phone outside the plant and away from her machine during company time. Not
only is the evidence presented in Hite's prima facie case suggestive of pretext, but the
jury could also have found that Leedom's allegation that Hite used her cell phone
without permission had no basis in fact. Hite testified that Leedom gave her
permission to be away from her machine and use her cell phone. In addition, Wharton
testified that her father, a supervisor at Vermeer, told her that Hite had been targeted
for termination because of her FMLA absences. The jury was entitled to make a
credibility determination as to whether it believed Leedom or Hite; it chose to believe
the latter.

      Second, Hite presented evidence that Vermeer did not respond to other
employees in the way that it responded to Hite. Johnson and Wharton testified that it
was common for Vermeer employees not to be punished for leaving the plant at lunch

                                         -12-
without clocking out, while Leedom did punish Hite for not clocking out on her lunch
break.

       Finally, Johnson and Wharton testified that they had personally experienced
retaliation by Vermeer for taking FMLA leave, demonstrating a pattern of
discrimination. Therefore, we hold that the district court did not err in finding that
sufficient evidence of FMLA retaliation existed to support the jury's verdict.

                        B. Liquidated Damages and Interest
       Vermeer's and Leedom's second argument is that the district court's award of
liquidated damages and interest was unsupported by the evidence. We review a district
court's award of liquidated damages and interest for an abuse of discretion. Thorson
v. Gemini, Inc., 205 F.3d 370, 383 (8th Cir. 2000).

                             1. Liquidated Damages
       The FMLA provides that the employer "shall be liable to any eligible
employee affected [by a violation of the Act] . . . [for] an additional amount as
liquidated damages equal to the sum of the amount" of other damages and interest
awarded pursuant to § 2617(a)(1)(A)(i) and (ii). 29 U.S.C. § 2617(a)(1)(A)(iii).

        There is, however, an exception to "this otherwise mandatory call for
liquidated damages." Thorson, 205 F.3d at 383. That is, if the employer proves "to
the satisfaction of the court that the act or omission which violated section 2615 of
this title was in good faith and that the employer had reasonable grounds for
believing that the act or omission was not a violation of section 2615 of this title,
such court may, in the discretion of the court, reduce the amount of the liability to
the amount and interest determined under clauses (i) and (ii) respectively." 29
U.S.C. § 2617(A)(iii); see also Thorson, 205 F.3d at 838 (stating that if good faith
is shown, then the "court in its discretion may decline the award of liquidated
damages").

                                        -13-
        To avoid a liquidated damages award, the defendant bears the burden of
establishing that it acted with subjective good faith and that it had an objectively
reasonable belief that its conduct did not violate the law. See Hultgren v. County of
Lancaster, 913 F.2d 498, 509 (8th Cir. 1990) (applying standard of the Fair Labor
Standards Act). The good faith requirement demands that the defendant establish
that it honestly intended to ascertain the dictates of the FMLA and to act in
conformance with it. See Marshall v. Brunner, 668 F.2d 748, 753 (3rd Cir. 1982)
(applying standard of the Fair Labor Standards Act).

       However, even if the employer did act in good faith, "the decision to award
liquidated damages is still within the discretion of the trial court." Nero v. Indust.
Molding Corp., 167 F.3d 921, 928 (5th Cir. 1999). The district court should
exercise its discretion "consistently with the strong presumption under the statute
in favor of doubling." Shea v. Galaxie Lumber & Constr. Co., Ltd., 152 F.3d 729,
733 (7th Cir. 1998).

       Showing good faith when a jury has determined intentional retaliation is a
very high bar to clear, if indeed it can be. However, based upon the record before
us, we have no difficulty holding that the district court did not abuse its discretion
in awarding liquidated damages. Here, the jury found that Vermeer and Leedom
intentionally retaliated against Hite for taking FMLA leave. The jury was presented
with evidence that Leedom harassed Hite about using FMLA leave on a continual
basis, and that when Hite complained to her superiors, Leedom's harassment did
not cease.

                                       2. Interest
       When an employer violates the FMLA, such employer is liable to the
employee for "the interest on the amount described in clause (i) calculated at the
prevailing rate . . . ." 29 U.S.C. § 2617(A)(ii). Clause (i) refers to the jury's award
for "any wages, salary, employment benefits, or other compensation denied or lost

                                         -14-
to such employee by reason of the violation [of the FMLA]." Id. § 2617(A)(i)(I).
Section 2617 indicates that the award of such interest is mandatory. Id. § 2617
("Any employer who violates section 2615 of this title shall be liable to any
eligible employee affected. . . ."). Vermeer and Leedom make no convincing
argument nor cite any authority showing that the interest awarded was improperly
calculated. We therefore affirm the district court's interest award.

                                C. Back Pay Award
       The final argument of Vermeer and Leedom is that the district court should
have granted their motion to alter or amend the judgment regarding back pay
because the jury's back pay award was based on an amount Hite would have made
had she worked a full 52 weeks per year since her termination. They argue that the
evidence shows that Hite would have worked no more than 40 weeks per year had
she continued to work at Vermeer; therefore, the district court erred by not
remitting to an amount for 40 weeks.

       We will only reverse a district court's denial of a motion for remittitur "upon
a manifest abuse of discretion or because the verdict is so grossly excessive the
result is monstrous or shocking." Callantine v. Staff Builders, Inc., 271 F.3d 1124,
1133 (8th Cir. 2001).

      Federal Rule of Civil Procedure Rule 59(e) allows the district court to alter
or amend a judgment so that the district court can "rectify its own mistakes in the
period immediately following the entry of judgment." White v. New Hampshire
Dep't of Employment Sec., 455 U.S. 445, 450 (1982) (internal quotations omitted).

       Under Rule 59(e), the "district court should grant remittitur only when the
verdict is so grossly excessive as to shock the court's conscience."Am. Bus.
Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135, 1146 (8th Cir. 1986). "Whether an



                                         -15-
award is excessive rests within the discretion of the trial court." Jenkins v. McLean
Hotel, Inc., 859 F.2d 598, 600 (8th Cir. 1988).

       When an appellate court is "confronted on review with a jury determination
as to a particular measure of damages buttressed by the conclusion of the trial
court, who had the benefit of hearing the testimony and observing the demeanor of
the witnesses, that the verdict should stand," it "'should be certain that the award is
contrary to all reason before it orders a remittitur or a new trial.'" Slatton v. Martin
K. Eby Constr. Co., Inc., 506 F.2d 505, 508 (8th Cir. 1974) (quoting Taylor v.
Washington Terminal Co., 409 F.2d 145, 148 (D.C. Cir. 1969)).

       Here, the jury awarded the amount that the parties stipulated was the correct
amount of wages and benefits Hite would have earned had she not been fired by
Vermeer. Vermeer and Leedom argued to the jury that Hite's back pay damages
should be reduced because of hypothetical FMLA use Hite would have used in the
future. The jury apparently rejected this argument.

      Therefore, we hold that the district court did not abuse its discretion in
denying the motion for remittitur because the jury's back pay award is not grossly
excessive or "conscience shocking" in light of the evidence presented to the jury.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                          -16-
