                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2537
                                    No. 98-2538
                                    ___________

Kristen Dhyne,                           *
                                         *
      Plaintiff - Appellant/             *
      Cross Appellee,                    *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Meiners Thriftway, Inc.,                 *
                                         *
      Defendant - Appellee/              *
      Cross Appellant.                   *
                                    ___________

                               Submitted: February 10, 1999

                                   Filed: July 21, 1999
                                    ___________

Before WOLLMAN,* LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

LOKEN, Circuit Judge.

       Kristen Dhyne sued her former employer, Meiners Thriftway, Inc. (“Meiners”),
asserting claims of co-worker sexual harassment and retaliation discrimination in
violation of Title VII, 42 U.S.C. §§ 2000e et seq., and the Missouri Human Rights Act


      *
        Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.
(“MHRA”), Mo. Rev. Stat. §§ 213.010 et seq. After a jury trial, the district court1
granted judgment as a matter of law dismissing Dhyne’s claims for punitive damages
and retaliation. The jury awarded Dhyne $1.00 in nominal compensatory damages on
her claim for hostile work environment sexual harassment. Dhyne appeals the district
court’s refusal to submit punitive damages and retaliation to the jury. Meiners cross-
appeals the court’s refusal to grant judgment as a matter of law on the sexual
harassment claim. Each party appeals an evidentiary ruling. We affirm.

                             I. Sexual Harassment Issues.

         Dhyne worked as a checker at the Meiners family-owned grocery store in
Kansas City from mid-March to late October 1996. For the first three months of that
period, Dhyne alleges that a young African-American grocery sacker, Rodney Davis,
subjected her to quiet but persistent sexual harassment and abuse. Davis denied
harassing Dhyne and accused her of making racially motivated complaints. Dhyne
argues the harassment was so severe and Meiners’s response so inadequate that she
deserves punitive damages. Meiners argues that, by transferring Davis to a different
shift, it handled a difficult situation so well that it deserves judgment as a matter of law.
The jury’s $1.00 verdict suggests that it did not fully credit either side’s evidence.

       A. The Evidence at Trial. Dhyne was the first of eleven witnesses in the two-
day trial. She testified that during her first week as a checker, Davis began a campaign
of quiet but offensive sexual harassment. According to Dhyne, the campaign included
calling her offensive names such as “bitch,” “whore,” and “slut,” commenting crudely
on parts of her body, making sexual moaning noises, asking if she tanned in the nude,
inviting her to perform oral sex, and ignoring her repeated requests to stop the
harassment. In April, Dhyne complained to assistant manager Tom Watson, who


       1
        The HONORABLE FERNANDO J. GAITAN, JR., United States District Judge
for the Western District of Missouri.

                                            -2-
assured her he would speak to Davis. Within a week of that complaint, Dhyne told
Watson that Davis was continuing to harass, and Watson said he would again speak
to Davis. Rather than improve, Davis’s conduct worsened -- he began pinching
Dhyne’s arm, brushing her behind, and lifting the legs of her shorts.

       In early June, Dhyne again complained to Watson, accompanied by Stacy
Napier, a checker who had previously complained of inappropriate conduct by Davis.
Watson responded he had recommended Davis be fired. A few days later, after
seeking help from an attorney, Dhyne complained of the continuing harassment to Dan
Meiners, director of store operations. Meiners said he would speak to Davis. On June
12, a tearful Dhyne told Watson and then Meiners that Davis’s harassment was
continuing. Meiners immediately transferred Davis to the night shift, where he had no
contact with Dhyne. The night shift manager fired Davis later in June, but he was
rehired in September on a different shift than Dhyne worked. She questioned his being
rehired but made no further complaints of sexual harassment.

       Five other present and former non-supervisory employees testified at the trial,
including three checkers and one sacker, Eric Norton. None heard or saw Davis direct
sexually offensive comments or actions toward Dhyne. Napier testified that she
encouraged Dhyne to complain to management because, when Davis had previously
made sexually offensive and derogatory comments to Napier, she complained to Dan
Meiners, and Davis promptly apologized and never harassed Napier again. All of these
witnesses described Dhyne as a difficult and divisive co-worker.

      Assistant Manager Watson testified that Dhyne repeatedly complained of sexual
harassment by Davis between April and mid-June 1996. Watson said he confronted
Davis after each complaint. Davis denied harassing Dhyne. Watson “told him if this
is happening, you better cut it out or you’ll lose your job.” After Dhyne’s third
complaint, Watson talked to Dan Meiners. After the fourth complaint, Watson
recommended to Meiners that Davis be fired.

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       Dan Meiners testified that, when Dhyne first complained to him of sexual
harassment, he warned Davis that harassing behavior would not be tolerated. Davis
denied the allegations, adding that Dhyne had something against him. On June 12,
when Dhyne complained that the harassment was continuing, Meiners decided to fire
Davis. He confronted Davis, who not only denied Dhyne’s allegations but also told
Meiners that Dhyne’s complaints were racially motivated. Faced with that dilemma,
Meiners testified that he instead transferred Davis to the night shift where he would
have no further contact with Dhyne. Four days later, Davis was fired for failing to
report to the night shift. He was rehired in late September to work an evening shift that
did not overlap the shift worked by Dhyne.

        B. The Legal Environment. “When the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment, Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). The Supreme Court recently discussed at length an employer’s vicarious
liability for a hostile work environment created by a supervisor. See Burlington Ind.,
Inc. v. Ellerth, 118 S. Ct. 2257 (1998); Faragher v. City of Boca Raton, 118 S. Ct.
2275 (1998). This is a different type of case because it involves harassment by a non-
supervisory co-worker. Our court has long recognized that an employer may be
directly liable for such harassment if it knew or should have known of the conduct and
failed to take proper remedial action. See Callanan v. Runyun, 75 F.3d 1293, 1296 (8th
Cir. 1996); Hall v. Gus Constr. Co., 842 F.2d 1010, 1015-16 (8th Cir. 1988).

       In 1991, Congress amended Title VII to provide for punitive damages if a private
employer engages in intentional, unlawful discrimination “with malice or with reckless
indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C.
§ 1981a(b)(1). The Supreme Court recently clarified the standard for awards of
punitive damages under this statute. It “provides for punitive awards based solely on
an employer’s state of mind. . . . The terms ‘malice’ or ‘reckless indifference’ pertain

                                           -4-
to the employer’s knowledge that it may be acting in violation of federal law, not its
awareness that it is engaging in discrimination.” Kolstad v. American Dental Ass’n,
1999 WL 407481, at *6 (U.S. Jun. 22, 1999).

       C. Meiners’s Claim for Judgment as a Matter of Law. Meiners appeals the
district court’s denial of judgment as a matter of law on Dhyne’s hostile work
environment claim, arguing that it took prompt remedial action reasonably calculated
to end the harassment.2 This is a close question. Dan Meiners effectively remedied the
situation in mid-June when he transferred Davis to another shift. The problem with this
remedial action is Meiners’s delay in taking it. In many cases, the requirement that an
employer properly remedy co-worker sexual harassment must tolerate some delay.
Here, for example, Davis denied the alleged harassment, and no other employee
corroborated Dhyne’s complaints of verbal rather than physical harassment. An
employer must be allowed some time to gauge the credibility of the complainant and
the seriousness of the situation if we are to observe the Supreme Court’s caution that
Title VII is not “a general civility code for the American workplace.” Oncale v.
Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1002 (1998). Nonetheless, there was
evidence of unacceptable delay. Assistant Manager Watson testified that he had the
authority to hire and fire. A reasonable jury could find that Watson should not have
delayed two months before taking effective action himself or bringing Dhyne’s repeated
complaints to Dan Meiners’s attention. Because Dhyne sought only damages, the
jury’s one dollar nominal award was in essence a verdict in favor of Meiners. The
district court did not err in upholding that verdict.


      2
        Meiners also appeals the denial of its pretrial motion for summary judgment on
this issue. “A ruling by a district court denying summary judgment is interlocutory in
nature and not appealable after a full trial on the merits.” Metropolitan Life Ins. Co.
v. Golden Triangle, 121 F.3d 351, 354 (8th Cir. 1997). We instead review the denial
of judgment as a matter of law giving the verdict a deferential standard of review. See
Johnson Int’l Co. v. Jackson Nat’l Life Ins. Co., 19 F.3d 431, 434-35 (8th Cir. 1994).


                                          -5-
       D. Dhyne’s Claim for Punitive Damages. Dhyne argues the district court
should have submitted her punitive damages claim to the jury. We disagree. There
was no evidence suggesting evil motive or an intentional violation of federal law by the
Meiners management. Watson credited Dhyne’s complaints. Though he failed to
remedy the situation, he warned Davis to behave and eventually urged that Davis be
fired. Dan Meiners responded decisively when Dhyne complained to him in June 1996.
The Meiners management may have excessively delayed, but it was not guilty of acting
“with malice or with reckless indifference.” See Varner v. National Super Markets,
Inc., 94 F.3d 1209, 1214 (8th Cir. 1996), cert. denied, 519 U.S. 1110 (1997).
Likewise, Meiners’s conduct was not “outrageous because of [its] evil motive or
reckless indifference to the rights of others,” the punitive damages standard under the
MHRA. Burnett v. Griffith, 769 S.W.2d 780, 789 (Mo. banc 1989).

                             II. The Retaliation Claim.

       Both Title VII and the MHRA prohibit retaliation against employees who
complain of discrimination. See 42 U.S.C. § 2000e-3(a); Mo. Rev. Stat. § 213.070.
Dhyne argues the district court erred in dismissing her claim that she was terminated
on October 24, 1996, in retaliation for her complaints of sexual harassment. We review
de novo the district court’s grant of judgment as a matter of law, applying the same
standard used by the district court. See Manning v. Metropolitan Life Ins. Co., 127
F.3d 686, 689 (8th Cir. 1997). Judgment as a matter of law is appropriate if “there is
no legally sufficient evidentiary basis for a reasonable jury to find for” the non-moving
party. FED. R. CIV. P. 50(a)(1). When the parties have developed a full trial record,
we are not concerned with plaintiff’s prima facie case. “What is relevant, at this point,
is simply whether the plaintiff’s evidence permits a reasonable inference of
discrimination.” Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1100 (8th Cir. 1988).




                                          -6-
       Dan Meiners testified that he saw Dhyne take deli food and a drink into the
break room without paying for it during a mid-day break. Meiners instructed Watson
to wait until Dhyne left the store after her shift, verify whether she paid for the food,
and terminate her if she did not. When Dhyne left the store that afternoon, Watson
confirmed she had not paid for any food that day, caught up with her outside the store,
and terminated her for taking food without paying for it. At trial, Dhyne denied eating
any food that day except a donut before her shift began. Watson testified that when he
confronted Dhyne outside the store, she first said she forgot to pay for the lunch.

       Dhyne introduced virtually no evidence linking the termination to her earlier
complaints of harassment. Her last sexual harassment complaint occurred in mid-June;
she was terminated in late October. Standing alone, a four-month gap “weakens the
inference of retaliation that arises when a retaliatory act occurs shortly after a
complaint.” Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997). Here, the
time gap is reinforced by other undisputed evidence refuting any inference of a causal
link. In mid-June, Meiners responded to Dhyne’s complaints by transferring and then
firing Davis, while Dhyne was neither criticized nor disciplined. Dhyne responds that
she was disciplined unfairly and denied favorable treatment in several ways after June
1996. But no other witness supported her claims of disparate treatment, and all her co-
workers testified that Dhyne was a persistently troublesome employee. Thus, her
conclusory, unsupported assertions that she was treated unfairly do not raise an
inference of retaliation discrimination. See Feltmann v. Sieben, 108 F.3d 970, 976 (8th
Cir. 1997), cert. denied, 118 S. Ct. 851 (1998).

       By contrast, Meiners articulated a legitimate, nonretaliatory reason for Dhyne’s
termination -- she violated a company rule that employees must pay for food they eat
on the job -- and Dhyne failed to prove this stated reason for discharge was pretextual.
Dhyne denied eating food without paying for it that day. But Dhyne’s denial standing
alone is not evidence Dan Meiners fabricated the charge. Even if Meiners was


                                          -7-
mistaken, a number of witnesses corroborated his testimony that he tried to verify
whether Dhyne had eaten food without paying for it. Dhyne further accuses Meiners
of changing his story at trial by advancing her poor work performance as an additional
reason for the termination. But many employees testified that Dhyne became an
increasingly difficult and divisive presence in the work force after Meiners remedied
her complaints of sexual harassment. Meiners would not be the first employer to
terminate an unsatisfactory employee for committing an infraction that might be
tolerated in others. The food incident on October 24 may well have been, in colloquial
parlance, “the straw that broke the camel’s back.” That does not prove this stated
reason for discharge was a pretext for retaliation discrimination. Compare Rath v.
Selection Research, Inc., 978 F.2d 1087, 1089-90 (8th Cir. 1992).



                               III. Evidentiary Issues.

      A. Dhyne argues the district court erred in refusing to allow her to read Dan
Meiners’s deposition testimony into evidence during her case in chief. Meiners was
available to testify. Dhyne declined to call him as a live witness, and he testified as a
witness for the defense. Dhyne argues the court’s ruling violated Rule 32(a)(2) of the
Federal Rules of Civil Procedure, which provides that the deposition of a party’s
corporate officer “may be used by an adverse party for any purpose.”

      Many trial judges require that a deposed witness testify live, if available. The
reason for the practice is clear:

      Judge Learned Hand proclaimed the deposition to be “second best, not to
      be used when the original is at hand.” If possible, it is always better if the
      jury can observe the witness firsthand to judge his or her demeanor.




                                           -8-
Loinaz v. EG&G, Inc., 910 F.2d 1, 8 (1st Cir. 1990); see 8 WRIGHT, MILLER &
MARCUS, FEDERAL PRACTICE & PROCEDURE § 2142 (1994). The practice cannot
possibly cause unfair prejudice, because the party wishing to use deposition testimony
can call the adverse witness live, impeach him with the deposition if necessary, and
even question the witness using the exact same questions asked at the deposition.
Thus, though arguably inconsistent with the language of Rule 32(a)(2), precluding a
party from reading the deposition testimony of an available adverse party witness is at
worst harmless error. See Crimm v. Missouri Pac. R.R., 750 F.2d 703, 709 (8th Cir.
1984). Dhyne suggests the practice is reversible error in Missouri state courts, citing
Henson v. Washington School Dist., 948 S.W.2d 202, 210-11 (Mo. App. 1997).
However, federal law governs this procedural issue.

       B. Meiners argues the district court abused its discretion by excluding personnel
records from three other employers that allegedly evidence Dhyne’s chronic inability
to cooperate with her co-workers. See E. I. du Pont de Nemours & Co. v. Berkley &
Co., 620 F.2d 1247, 1272 (8th Cir. 1980) (standard of review). Meiners offered this
evidence to show that Dhyne’s termination was not a pretext for retaliation
discrimination. We decline to consider this issue. As Meiners has prevailed on the
retaliation claim, any evidentiary error was obviously harmless.

      The judgment of the district court is affirmed. The costs of appeal are taxed
against appellant Dhyne. See F.R.A.P. 39(a).

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

       I concur in all of the court’s opinion except the portion of it that upholds the
district court's decision not to submit Ms. Dhyne’s retaliation claim to the jury. With
respect, I cannot agree with the court that no reasonable person could have found on




                                          -9-
this record that Mr. Meiners discharged Ms. Dhyne in retaliation for making a
complaint about Mr. Davis’s behavior.

       In order to raise an inference that an improper motive animated an employment
action, all that a plaintiff has to produce is evidence that the defendant’s professed
motive was pretextual, that is, falsely professed. See Ryther v. KARE 11, 108 F.3d
832 (8th Cir. 1997) (en banc), cert. denied, 521 U.S. 1119 (1997). Here, there was
evidence, in the form of Ms. Dhyne’s testimony, that the act on which Mr. Meiners said
he based his decision to fire Ms. Dhyne never in fact occurred. It seems to me
inescapable that a reasonable person who believed Ms. Dhyne could infer that
Mr. Meiners fabricated his motive for terminating Ms. Dhyne’s employment. The
inference itself is hardly inescapable, but it is permissible.

        The court alludes to testimony from witnesses that corroborated Mr. Meiners’s
testimony that he tried to verify when Ms. Dhyne had eaten food without paying for it.
But, in the first place, the court does not indicate that there was any evidence that in
fact tended to show that Ms. Dhyne acted in the way that Mr. Meiners claimed. More
fundamentally, even if there was such testimony, the jury would be free to disbelieve
it, leaving intact the inference that Mr. Meiners was not telling the truth. That inference
would be sufficiently strong to carry the day for Ms. Dhyne. Cf. Kniebert v. Thomson
Newspapers, Michigan, Inc., 129 F.3d 444, 456 (1997) (Morris Sheppard Arnold,
dissenting).

       When one adds to the factual mix the evidence that Mr. Meiners changed his
story about why he terminated Ms. Dhyne, it is hard to resist the conclusion that an
inference is raised that Mr. Meiners was not telling the truth. The court’s discussion
certainly makes out an excellent case for Mr. Meiners, but in the end all it does is
summarize the evidence in a light most favorable to him. It might well be that a verdict
for Ms. Dhyne on this point would have been surprising; indeed, it would have


                                           -10-
surprised me. But the jury was, on this record, entitled to have the case, and believe
whatever proof seemed to it to be entitled to credit.

     I therefore respectfully dissent from the court's decision with respect to
Ms. Dhyne’s retaliation claim.

      A true copy.

             Attest:

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




                                        -11-
