                                   ___________

                                   No. 95-3427
                                   ___________

Karen M. Karcher,
                                        *
           Appellee,                    *
                                        *    Appeal from the United States
     v.                                 *    District Court for the
                                        *    Eastern District of Missouri.
Emerson Electric Co.,                   *
                                        *
           Appellant.                   *
                                   ___________

                    Submitted:     May 16, 1996

                          Filed:   September 4, 1996
                                   ___________

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


WOLLMAN, Circuit Judge.


     Emerson Electric Company (Emerson) appeals the jury verdict in favor
of Karen Karcher on her sex and handicap discrimination claims.   On appeal,
Emerson raises numerous issues relating to the trial, including:     1) that
it was entitled to judgment as a matter of law (JAML) on Karcher's failure-
to-promote and retaliation claims; 2) that the district court erred in
failing to alter or amend the judgment with respect to emotional distress
damages and punitive damages; and 3) that it is entitled to a new trial
because of erroneous evidentiary rulings and erroneous jury instructions.
We affirm in part and reverse in part.


                                       I.


     At the time of trial, Karcher was an employee of Alco Controls
(Alco), a division of Emerson.         Karcher worked at Alco's St. Louis
facility, which manufactures refrigerator parts.        The St. Louis plant
employs more than three hundred hourly workers, who are
represented by District No. 9, International Association of Machinists,
AFL-CIO (the union).     At least one-third of the union employees are female.


     Until 1988, there were only three basic types of equipment in the
machine shop, the area of the plant where Karcher worked:         manual bar feed
machines, manual automatic chucker machines, and numerically-controlled
machines.    The machine shop used two types of employees, set-up workers and
operators.      The   set-up   workers   manually   calibrated   the   machines   to
manufacture a particular refrigerator part and were then responsible for
maintaining the machine so that it would produce consistently accurate
parts.   After the machine was set up, the operators ran the machines by
feeding the raw materials into the machine, inspecting the completed parts
to determine if they met specifications, and making minor adjustments to
the machine, if necessary.


     In 1988, Emerson purchased two new computerized bar feed machines
called Miyanos and two new computerized automatic chucker machines called
Pumas.   Rather than requiring manual setup as the old machines did, these
machines were set up by computer.          Thus, where the adjustments in the
tooling had previously been made by hand, the set-up person could now make
these adjustments by simply pushing buttons on a computer.


     Because no plant employee knew how to program or set up the new
machines, Emerson initially hired someone outside the company to perform
these tasks and to teach these skills to selected male Emerson employees.
After Emerson installed the new machines, union and company officials met
to negotiate a job classification, wage rate, and selection process for the
new set-up jobs.      Although the parties dispute the results of this meeting,
they agree that the new jobs were classified as "Group 6 general machine
shop set-up" (Group 6 set-up positions).




                                         -2-
      This classification required the employee holding the position to be
able to set up any machine in the plant. No Emerson employee was capable
of doing this, however, so the parties were required to further negotiate
the qualifications for the job.              The collective bargaining agreement in
place at the time provided that new jobs should be filled "with seniority
being the deciding factor, where skill, ability, and physical fitness of
the employees' [sic] being considered are relatively equal."                    This rule
could not be applied in a straightforward manner to the Group 6 set-up
positions, however, because no employee had direct experience setting up
the machines, and the parties disputed what indirect experience would be
helpful in undertaking these new jobs.


      Both Karcher and Emerson offered the testimony of witnesses who were
present      at    this   initial   union-employer     meeting.      One   of   Karcher's
witnesses, Grady Scott (Karcher's step-father), testified that it was his
understanding that the new positions would be awarded based solely on
seniority.        Another of Karcher's witnesses, Tom Bonzo, testified that the
positions were to be awarded to the senior bidder with at least six months
experience in a machine shop.                On the other hand, two of Emerson's
witnesses testified that Miyano setup would require prior set-up experience
on bar feed equipment and that Puma setup would require prior set-up
experience on automatic chuckers.             Emerson's witnesses also agreed that
workers with prior set-up experience on the old numerically-controlled
machines would be qualified to set up both Pumas and Miyanos.                   According
to   these    witnesses,     the    senior    bidder   with   the   appropriate    set-up
experience would be awarded the job.


      Karcher was hired by Emerson on March 19, 1976.                From the time she
was hired until the time of trial, she held a variety of jobs at Emerson,
including assembler, manual automatic chucker machine operator, drill press
operator, bench lathe operator, welder, and tester.                     Her experience
included operating numerically controlled machines and inspecting and
finishing parts that had been machined.




                                             -3-
None of these jobs, however, involved set-up work.


     On September 11, 1978, Karcher became the only woman to work in the
automatic screw machine department.       Although this position was not
primarily a set-up position, she began learning some set-up skills on an
automatic screw machine while she held this job.    On October 23, 1978, she
was removed from this job even though she was having no difficulty learning
setup on the screw machine.


     Karcher applied for two Group 6 set-up positions, one that was posted
on October 18, 1990, and another that was posted on February 4, 1992.
Karcher was near the top of seniority on the list of applicants for both
of these positions.   Ten Emerson employees, including Karcher, bid on the
first position, with Karcher being the second most senior bidder.   Both the
most senior bidder and Karcher, as well as the next two senior bidders,
were determined to be "not qualified" for the position.    Bill Pearson, the
fifth senior bidder got the job.    Pearson had bar feed set-up experience
on the turret lathe as well as trade schooling.    The fourth senior bidder,
Anna Ryan, was determined to be not qualified despite her set-up experience
with another company.   Karcher filed charges with the EEOC and the Missouri
Commission on Human Rights with respect to the denial of this promotion.
Nine employees, including Karcher, bid on the second job.         The senior
bidder, after being determined to be not qualified, withdrew his bid.
Karcher, the next senior, was again determined to be not qualified.   A male
employee was given the job.


     Between 1988 and 1994, Emerson awarded twenty-six Miyano and Puma
set-up positions.   All of these positions were awarded to men.   Twenty-five
of the successful bidders had either set-up experience or experience on the
numerically-controlled machines.   Grady Scott, however, was awarded a Group
6 set-up position without having




                                    -4-
either type of experience.1             Scott testified that Karcher was more
qualified than he was because she had operated numerous machines and
equipment.


     Karcher's      husband,    Jerry   Karcher   (Jerry)     was     also   an     Emerson
employee, working as a quality assurance supervisor.             As part of his job,
Jerry was required to attend monthly supervisor's meetings.                        At these
meetings,    status   reports    were   presented      regarding      pending      workers'
compensation claims and grievances.       During the time he held this job, his
wife filed at least six workers' compensation claims after being injured
on the job in March of 1983.          Thus, as part of his job, Jerry attended
meetings where his wife's claims were discussed.


     In     early   1990,   Karcher   applied   for    a   position    in    the    quality
assurance department.       Had she been awarded the job, her husband would have
been her direct supervisor.       At that time, Jerry told his supervisors that
were his wife to be awarded the job, he would leave the company to avoid
any conflict of interest.       When Karcher was informed that her husband would
be required to leave the company if she were awarded the job, she withdrew
her bid.


     In early December of 1991, Karcher learned that another Group 6 set-
up position would become available because Scott would be retiring because
of ill health.      Karcher then attempted to contact Richard Schul, Alco's
president, about the potential job opening.           Schul refused to see Karcher,
informing her that she needed to discuss the matter through the company's
chain of command.       In response to Karcher's attempt to contact Schul,
Jerry's supervisors, Vicki Taylor and Jim Wors, met with him on December
9, 1991, and informed him that they believed that a serious conflict




     1
     Emerson asserted that Scott had set-up experience acquired in
the repair shop that he owned. Scott, himself, testified that he
had no such experience.

                                         -5-
of interest had developed and that he should begin looking for another job.
According to Jerry, Wors stated at this time that "since your wife has
these lawsuits and cases pending against us, we feel that we are going to
give you sixty days to find another job."


     Although Jerry did not find another job within sixty days, he was not
terminated.   He continued to work for Emerson until July 1992, when he was
offered a job at Cerro Copper Product Company.   He accepted this position,
which offered a higher salary but fewer benefits.


     In January 1994, Emerson instituted a "safety pays" bingo game.    The
bingo jackpot started at twenty-five dollars and increased one dollar for
every day in which there was not a lost-time accident in the plant.    Each
employee who signed up for the game received a bingo sheet, and each day
without a lost-time accident a number and letter were drawn in the typical
bingo manner.    Any employee who had a lost-time accident on the job was
disqualified from playing the remainder of the game and the following
round.    The bingo sign-in sheet stated, "By signing my name below, I
certify I have not had any work-related injuries during the previous game
round."    In a meeting which Karcher did not attend, Taylor and Wors
explained that an employee who suffered an on-the-job injury but did not
lose work time as a result thereof would be permitted to play the game if
the employee reported the injury to his supervisor.


     In January 1994, Karcher visited a doctor for treatment of the
recurrence of a work injury that she had suffered on July 14, 1993, and
which she had reported to her supervisor at the time.   On January 10, 1994,
Karcher filed a workers' compensation claim for this doctor visit.   Karcher
lost no work time in relation to this visit, and she did not report the
claim to her supervisor.   On January 20, Karcher's supervisor presented the
bingo sign-in sheet




                                    -6-
for Karcher to sign.     When Karcher declined to sign it, she was informed
that participation in the game was mandatory.     Karcher therefore signed the
form.     The language explaining that an employee who suffered any work-
related injury was not permitted to sign the form was obscured by the top
of the clipboard.    Karcher was subsequently issued a disciplinary warning
for falsification of company records for signing of the bingo form without
reporting an injury to her supervisor.      The notice warned that any further
infractions could result in discharge.      Karcher filed a grievance over this
report, and it was eventually removed from her file, although the warning
remained in effect for most of the remainder of 1994.


        On October 24, 1994, Karcher filed this complaint against Emerson,
alleging discrimination on the basis of her sex and handicap, in violation
of   Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §
2000e et seq. and the Missouri Human Rights Act (MHRA), Mo. Rev. Stat §
213.111.    She alleged four incidents of discrimination:     a) two incidents
of failure to promote to Group 6 set-up positions based on her sex and b)
two incidents of retaliation for her filing charges with the EEOC and the
Missouri Commission on Human Rights:     threatening to fire her husband and
forcing him to leave the company and disciplining and threatening to
discharge her with respect to the bingo game.


        The jury returned a verdict for Karcher, awarding her $25,000 for
lost wages and benefits, $150,000 for emotional pain and suffering, and
$350,000 in punitive damages.        Emerson filed a motion for judgment
notwithstanding the verdict, for a new trial, and to amend the judgment,
which the district court denied.


                                      II.


        Emerson first claims that it was entitled to JAML on Karcher's claims
of failure to promote.     We review de novo a district court's




                                     -7-
denial of a motion for JAML, applying the same standard as the district
court and overturning the verdict only if the evidence, viewed in the light
most favorable to the nonmoving party, is insufficient to support the
verdict.   Nicks v. State, 67 F.3d 699, 704 (8th Cir. 1995).


     Emerson attacks the verdict regarding Karcher's failure-to-promote
claims on two fronts, first arguing that Karcher failed to establish a
prima facie case of sex discrimination, and then arguing that Karcher
failed to prove that Emerson's proffered legitimate rationale for its
actions was pretextual.2    We decline to re-engage in the three-step
analysis performed by the district court, but instead limit our review to
the ultimate factual issue of whether Emerson intentionally discriminated
on the basis of the Karcher's sex.   See Parrish v. Immanuel Medical Ctr.,
No. 95-3514, slip op. at 8 n.2 (8th Cir. Aug. 14, 1996); Winbush v. State
of Iowa by Glenwood State Hosp., 66 F.3d 1471, 1479-80 (8th Cir. 1995);
Polacco v. Curators of the Univ. of Mo., 37 F.3d 366, 369-70 (8th Cir.
1994); Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796, 800-01 (8th Cir.
1994).


     To determine the merit of Karcher's discriminatory failure-to-promote
claims, the jury was required to accept either Emerson's explanation that
it failed to promote Karcher because she was not qualified or Karcher's
claim that Emerson failed to promote her because she was a woman.     This
determination involved an evaluation of lengthy testimony concerning the
company's promotion policies




     2
      In a disparate treatment employment discrimination case, the
plaintiff must first establish, by a preponderance of the evidence,
a prima facie case of discrimination. The burden of production
then shifts to the defendant to set forth legitimate reasons for
his actions. Finally, if the defendant carries this burden, the
plaintiff assumes the ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the
plaintiff. Hicks v. St. Mary's Honor Ctr., 509 U.S 502 (1993);
Nelson v. Boatman's Bancshares, Inc., 26 F.3d 796, 801 (8th Cir.
1994).

                                     -8-
and the qualifications necessary to operate the new computerized equipment.


       Emerson attempts to portray the selection process for the Group 6
set-up positions as thoroughly consistent, pointing to Grady Scott as the
single example of an employee who was hired without experience either on
machine setup or on the numerically-controlled machines.   The testimony at
trial, however, paints a more ambiguous picture of the selection process.
For example, Frank Carter was initially found not qualified for a Miyano
job.   When he complained to his brother, John Carter, who was the general
foreman in the machine shop, he was given the job.   In addition, two other
male employees were first told that they were not qualified, and then
shortly thereafter were deemed to be qualified and given the job.


       Moreover, the jury heard evidence from which it could have inferred
discriminatory intent on Emerson's part.   For example, more than six years
after Emerson adopted procedures to choose people for this job, it still
had not given any women the experience allegedly necessary to qualify for
the job.   In addition, from the time Richard Blair, the foreman responsible
for choosing several of the disputed positions, was hired in 1986, until
the time of trial, no women worked in his department.


       We find that the jury reasonably could have inferred from the
inconsistent nature of Emerson's selection process and Emerson's failure
to select any women or to train women to meet the alleged qualifications
of the job that Emerson intentionally discriminated by failing to promote
Karcher to a Group 6 set-up position because of her sex.          Thus, the
evidence supporting a finding of intentional discrimination was sufficient
to support the verdict on the failure-to-promote claims.




                                    -9-
                                    III.


     Emerson claims that it was entitled to JAML on Karcher's retaliation
claims.    Emerson argues that Karcher lacked standing to assert the rights
of her husband and that she failed to state a claim upon which relief could
be granted.


     To meet the constitutional requirements of standing, a plaintiff
"must allege personal injury fairly traceable to the defendant's allegedly
unlawful conduct and likely to be redressed by the requested relief."
Allen v. Wright, 468 U.S. 737, 751 (1984).        The evidence, viewed in
Karcher's favor, supports a finding that Emerson's dismissal of her husband
caused Karcher to suffer both economic and emotional damage.    Although her
husband received a higher paying job, the job offered him (and thus her)
fewer benefits.   Moreover, Karcher testified that she felt responsible for
causing her husband to leave a job that he liked and that this caused her
emotional stress and placed an additional strain on her marriage.        The
testimony of her psychiatrist and psychologist corroborated Karcher's
claims of emotional distress.


     Emerson relies on McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994),
and Parsons v. County of Del Norte, 728 F.2d 1234 (9th Cir.) (per curiam),
cert. denied, 469 U.S. 846 (1984), for the proposition that it had an
unequivocal right to dismiss Karcher's husband when a conflict of interest
arose in relation to Karcher's grievances and workers' compensation claims.
We find these cited cases to be inapposite, for they involved the question
whether a governmental interest in avoiding conflicts of interest outweighs
an employee's constitutional right to intimate association.    The employees
who suffered adverse employment action in those cases did not attribute
that action to an impermissible retaliatory motive.   Rather, the employees
argued that the employers' articulated motive of avoiding a conflict of
interest was outweighed by the employees' constitutional right to be
married.    Thus, the credibility of the




                                    -10-
employers' explanation was not at issue.


     In contrast, Emerson's true motivation was the primary issue to be
resolved    at    trial.      Karcher   claimed    that   Emerson's   motivation     was
retaliatory; Emerson claimed that it was motivated purely by the desire to
avoid an emerging conflict of interest.           The jury heard sufficient evidence
from which it could have believed Karcher and disbelieved Emerson.


     Emerson also argues that it was entitled to JAML on Karcher's claim
that the company retaliated against her by issuing a written warning with
respect to the bingo game.       The jury heard evidence that Karcher was forced
to sign the form, that the warning instructing employees with work-related
injuries not to sign the form was concealed at the time Karcher signed it,
and that Karcher's injury had not occurred within the relevant six-month
period.    In light of this evidence, the jury could have inferred that the
disciplinary action taken by the company was taken in retaliation for
Karcher's grievances and claims against the company.


                                           IV.


     Emerson argues that the trial court erred in instructing the jury on
Karcher's claim for damages for emotional distress, contending that the
instruction was not supported by the evidence, was not limited to the
employment practices complained of, and did not require adequate proof of
causation.       We reject these arguments.        In particular, we note that in
addition    to    Karcher's   testimony,    the    testimony   of   Dr.   John   Canale,
Karcher's treating psychiatrist, and that of Dr. Shirley Salmon, her
treating psychologist, tied Karcher's depression and emotional stress to
her job-related problems.




                                         -11-
     We also reject Emerson's claim that Karcher's recovery of emotional
distress damages is barred by the Missouri workers' compensation statute.
The exclusivity provision of the Missouri workers' compensation statute
provides that:


     The rights and remedies herein granted to an employee shall
     exclude all other rights and remedies of the employee . . . at
     common law or otherwise, on account of such accidental injury
     as death, except such rights and remedies as are not provided
     for by this chapter. Mo. Rev. Stat. § 287.120.2.


Clearly, this exclusivity provision can not preempt Karcher's federally
created right to recover damages for emotional distress under Title VII.
Moreover, we decline to read the provision to bar the recovery of such
damages under the MHRA absent clear direction from the Missouri courts, and
we have found no such direction.


     Although Missouri courts have held that the exclusivity provision
bars common law tort actions that arise out of incidents covered by the
workers' compensation statute, see, e.g., Hill v. John Chezik Imports, 797
S.W.2d 528, 531 (Mo. Ct. App. 1990), they have not extended the exclusivity
provision to bar suits under the MHRA.    Indeed, the language of the MHRA
appears to preclude any such finding.     The statute states, in relevant
part, that:


     The provisions of this chapter shall be construed to accomplish
     the purposes thereof and any law inconsistent with any
     provision of this chapter shall not apply.



We interpret broadly the remedial purpose of the MHRA, and we conclude that
an award of emotional damages under the statute is not foreclosed by the
possibility that such damages would have been recoverable under the
workers' compensation statute.




                                   -12-
      We agree with Emerson that the punitive damages claim should not have
been submitted to the jury, for there was simply insufficient evidence that
Emerson   acted   "with   malice   or   reckless    indifference   to    [Karcher's]
federally protected rights," as required under Title VII, or that Emerson's
conduct was outrageous as required under the MHRA.                 See Kientzy v.
McDonnell Douglas Corp., 990 F.2d 1051, 1062 (8th Cir. 1993) (standard
under Missouri law); 42 U.S.C. § 1981a(b)(1) (standard under federal law).
To support her punitive damages claim with respect to the failure-to-
promote claims, Karcher relies on Emerson's alleged deliberate choice to
set   qualifications   that   would     effectively   eliminate    all   women   from
obtaining Group 6 set-up positions.            Moreover, Karcher argues that the
retaliatory actions taken by Emerson justify a punitive damages award.


      This evidence does not support a finding either that Emerson acted
with malice or deliberate indifference or that its conduct was outrageous.
See Nelson, 26 F.3d at 804 (To recover punitive damages, Missouri law
requires a showing of conduct that would "shock the conscience and cause
outrage"); Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1216 (6th Cir.
1996) (duplicitous actions of employees were insufficient to support
punitive damages award under Civil Rights Act of 1991); Pandazides v.
Virginia Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir. 1994) (a showing of
more than intentional discrimination is required to recover punitive
damages under Civil Rights Act of 1991).         Accordingly, the punitive damages
award must be set aside.


                                          V.


      We address the remainder of Emerson's claims only briefly.           Emerson's
contention that Karcher was not entitled to a jury trial on her MHRA claims
is foreclosed by our recent decision in Gipson v. KAS Snacktime Co., 83
F.3d 225, 231 (8th Cir. 1996).      We have examined each of Emerson's claims
of evidentiary error, and find




                                        -13-
them to be without merit.        See Smith v. Firestone Tire & Rubber Co., 755
F.2d 129, 134 (8th Cir. 1985) (trial judge has broad discretion regarding
the admissibility of evidence).


      With respect to Emerson's claims of error relating to the jury
instructions, we review the district court's jury instructions for abuse
of   discretion    and   on    review   must   determine     simply   "whether   the
instructions, taken as a whole and viewed in light of the evidence and
applicable law, fairly and adequately submitted the issues in the case to
the jury."     Sherbert v. Alcan Aluminum Corp., 66 F.3d 965, 968 (8th Cir.
1995).     We find some merit in two of Emerson's jury instruction claims.
First, we agree that the instructions should have included a specific
provision on intent.         Second, the instructions should have included a
specific instruction on the requirement that plaintiff be qualified for the
applied-for     positions.      Proof   of   both   intent   to   discriminate   and
qualification for the applied-for positions is necessary under a disparate
treatment theory of sex discrimination.        See Marzec v. Marsh, 990 F.2d 393,
395 (8th Cir. 1993).


      In this case, however, we do not believe that Emerson was prejudiced
by the district court's failure to instruct specifically on intent or
qualifications.     See Stemmons v. Missouri Dep't of Corrections, 82 F.3d
817, 820 (8th Cir. 1996).      The jury was instructed that to return a verdict
for Karcher, it must find that "plaintiff's sex was a motivating factor in
defendant's decision."        This instruction was sufficient to convey to the
jury that unless Emerson's actions were intentional, Karcher could not
recover.     As to the qualifications issue, Emerson argued in closing that
it failed to promote Karcher because she was not qualified.               From the
instructions given, if the jury believed Emerson that its true reason for
failing to promote Karcher was her lack of qualifications for the job, then
the jury could not find for Karcher.         Thus, Emerson suffered no prejudice
from the absence of more detailed instructions, and we find no reversible
error.




                                        -14-
Emerson's challenge to the instruction on Karcher's retaliation claim must
likewise be rejected.


     That   portion   of   the   judgment   awarding   compensatory   damages   is
affirmed.   That portion of the judgment awarding punitive damages is
reversed, and the case is remanded to the district court for entry of
judgment dismissing that portion of Karcher's complaint.


     A true copy.


            Attest:


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




                                      -15-
