                    United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                 ___________
                                   No. 06-3509
                                   ___________

Roger Kight,                           *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
                                       *
Auto Zone, Inc.,                       *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: May 16, 2007
                                Filed: July 23, 2007
                                 ___________

Before MURPHY, HANSEN, and COLLOTON, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Roger Kight brought this action against AutoZone, Inc., alleging he was fired
in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621
et seq. A jury found AutoZone had discriminated against Kight and that its conduct
was willful. The district court1 denied AutoZone's motion for judgment as a matter
of law and motion for a new trial, and judgment was entered for $221,000 in damages,
attorney fees, and costs. AutoZone appeals, and we affirm.

      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
      Roger Kight was hired as a full time salesperson at AutoZone on July 11, 1995.
Over the course of his employment he was promoted from counter salesman to parts
sales manager and later to assistant manager. From September 27, 1998 until his
termination, he worked as the head of the store's commercial division with the title
commercial sales specialist. In that position he reported directly to the store manager.
He was offered the position of store manager, but declined it because he enjoyed
working with the commercial clients. In the year preceding his termination on
January 2, 2003, he twice received AutoZone’s highest evaluation ranking of
“exceeding expectations” during employment reviews. That same year gross sales in
Kight’s department improved 300% and profits increased 44%. He was 51 years old
in 2002.

       Steve Sinor was promoted to store manager in April 2001. Sinor made
disparaging remarks about the age of his employees nearly every day. Sinor referred
to Kight as “old man,” “old fart,” and “old fat fart" and told him he was “too old to do
his job.” In the presence of other employees and customers, Sinor announced over the
store's intercom that it was time for the old men over fifty to take a pee break. After
Kight’s department won a regional trophy for sales, Sinor told him he didn't want to
shake his "old man’s hand" and said, "You’re too old and you won’t work under my
rule.” Sinor told him he wasn’t going to go anywhere in the company because he was
too old. He made general comments that he didn't like working with old people
because they were sick, inflexible, and stuck in their ways. Kight began keeping a
record of Sinor’s age related comments in a notebook which he stored on a shelf in the
commercial division of the store. Sinor found the notebook while Kight was on
vacation in December of 2002.

       Kight received only one written disciplinary warning at AutoZone; that was in
a corrective action review (CAR). The CAR was issued on September 2, 1998, for
using abusive language, displaying aggressive and intimidating behavior, and for
conduct detrimental to AutoZone and its commitment to diversity and respect. The

                                          -2-
1998 review stated that Kight could be terminated if he engaged in similar conduct in
the future.

       Some time after Sinor found the notebook in which Kight had kept track of his
comments about age, Kight and Edward Powers got into a heated argument, but
assistant manager Rocky Reid separated the two before the fight could become
physical. Sinor then arranged for an investigation into Kight’s conduct by human
resources manager Grant Bagwell.

        Bagwell's investigation reported that coworkers Reid and Cecil Hall said Kight
belittled people, called them names, and used profanity. Bagwell also interviewed
Powers and Sinor before he talked with Kight. Sinor gave Bagwell the notebook in
which Kight had written down Sinor's age related comments. Tim Harrison, an
AutoZone staff attorney, also reviewed the notebook's contents before it was returned
to Kight at his interview. Kight told Bagwell that Sinor had repeatedly made
disparaging remarks about his age and that several employees had told him that Sinor
had admitted he tried to get Kight fired, but Bagwell responded that it was not his job
to investigate Sinor. Powers gave Bagwell a written statement listing his complaints
about Kight, including a description of their recent altercation and a claim that Kight
forced him to work off the clock.

       Bagwell communicated his conclusions to staff attorney Harrison and told him
that Kight had engaged in abusive behavior, made inappropriate comments, and used
profanity toward staff and customers. Harrison then consulted with the regional
manager, Todd Sittig. The two decided to terminate Kight on January 2, 2003, for
"inappropriate comments, misconduct toward customers, unprofessional behavior,
conduct unbecoming an AutoZoner, conduct detrimental to AutoZone, loss of
confidence." Their decision to terminate Kight was based solely on Bagwell's
investigation; the 1998 CAR was not considered.



                                         -3-
       Kight initiated this action on May 6, 2004, alleging AutoZone had
discriminated against him because of his age in violation of the ADEA and retaliated
against him for keeping the notebook that recorded Sinor's age related comments. The
court granted summary judgment on Kight's retaliation claim which was dismissed on
February 23, 2006, but it denied summary judgment on his ADEA claim. A jury trial
was held from April 3-6, 2006. Kight presented evidence to show that his supervisor
Steve Sinor discriminated against him because of his age and wrongfully initiated and
influenced a human resources investigation that eventually led to his termination.
AutoZone denied discriminating against Kight because of his age. Its theory and
evidence was that Kight had been terminated for inappropriate behavior with
customers and employees, which Kight claimed was only pretext.

       During trial AutoZone sought to enter Kight's 1998 CAR into evidence. The
district court excluded it as irrelevant because it had not been used in the decision to
terminate Kight and its relevance was further diminished because it was remote in
time. AutoZone also made an offer of proof seeking to introduce the CARs and
termination notices for four other employees who had been terminated for what it
asserted were similar reasons. The district court excluded the reviews and termination
notices as well as any testimony about them because these employees had not been
listed as witnesses and the record did not provide any context about their situations.

       Included in Kight's evidence at trial was his own testimony about his interview
with Bagwell. Bagwell had told Kight he would not investigate the complaints he
raised about Sinor, and Kight's attempt to contact Sinor's supervisor about his
behavior failed because the supervisor cancelled every appointment and told him he
was too "thin-skinned." In his testimony Kight admitted that he knew he could be
terminated for abusive or disruptive behavior. He called both Ed Powers and Cecil
Hall as witnesses. They had complained about Kight to Bagwell, but testified at trial
on his behalf. In the interim Powers had filed and lost an age and disability lawsuit
against AutoZone and Hall had filed four EEOC charges. They reported that Sinor
had coerced their previous negative statements about Kight and threatened to fire them
                                           -4-
if they did not comply. Powers testified that the statement he signed had been written
by Sinor and then given to Bagwell. Hall testified that Bagwell seemed to have a
preconceived idea about what the written report of their interview should say about
Kight's behavior and that he had manipulated the written answers. Kight’s counsel
stated in his closing statement that “There’s no corrective action reviews anywhere in
his file about any of these things that they are purporting he was doing at the time”
and emphasized that Kight was not told that he had acted inappropriately until he was
fired.

       AutoZone called Todd Sittig, Kight's regional manager, who testified that he
had terminated other employees for conduct similar to Kight's, and that “some of them
may have been” under the age of 40. Sittig and Harrison both testified that they were
the decisionmakers in terminating Kight. When Bagwell took the stand, he was asked
why he had not investigated any of the claims made about Sinor's inappropriate
behavior and he responded that he did not know.

       Counsel discussed jury instructions with the court in chambers. The district
court had previously informed them that it did not plan to submit a willfulness
instruction, but Kight's attorney requested one at the chambers conference.
AutoZone's counsel responded that the court's intention to omit a willfulness
instruction was appropriate. The district court subsequently told counsel it had
decided to give the instruction if the jury returned an initial verdict in favor of Kight.
On the day the case was submitted to the jury, a clerk informed counsel that the court
would add the following instruction if there were a verdict for Kight:

      Because you found for plaintiff under instruction No. 8, then you must
      decide whether the conduct of defendant was willful. You must find that
      defendant's conduct is willful if you find by the greater weight of the
      evidence that when defendant discharged plaintiff, defendant knew the
      discharge was in violation of the federal law prohibiting age
      discrimination or acted with reckless disregard of that law.

                                           -5-
After the jury returned a verdict in Kight's favor on April 6, 2006, awarding $110,500
in compensatory damages, the court gave the willfulness instruction and AutoZone
did not object. The jury found that AutoZone’s conduct was willful which doubled
the amount of the damages.

       AutoZone moved for judgment as a matter of law and alternatively for a new
trial. The district court denied both motions and upheld the $221,000 damage award
and added attorney fees and costs. AutoZone appeals from this order and argues that
its motion should have been granted for it was substantially prejudiced by the district
court’s exclusion of Kight's 1998 CAR and the CARs of the four other employees.
AutoZone also argues that the court erred in giving the willfulness instruction and that
the award of liquidated damages should be set aside.

      In discrimination cases the plaintiff has the burden to present a prima facie case.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Ryther v. KARE 11, 108
F.3d 832, 836 (8th Cir. 1997) (en banc). A prima facie case creates a legal
presumption of unlawful discrimination and shifts the burden to the employer to
produce evidence of a legitimate, nondiscriminatory reason for the plaintiff's
discharge. Id. at 836-37. If the employer carries this burden, the plaintiff has an
opportunity to demonstrate that its proffered nondiscriminatory reason was pretext.
Id.

       AutoZone first argues that the court erred in excluding Kight’s 1998 CAR
because it would have provided support for its nondiscriminatory reason for
terminating Kight. His CAR was relevant it claims, because it involved similar
conduct to that for which Kight was terminated and would have shown that he was on
notice that abusive conduct could lead to termination. The CAR could have been used
to impeach Kight’s testimony that he had not spoken inappropriately to customers or
used profanity toward other employees; it also could impeach Hall and Powers.
AutoZone argues it was substantially prejudiced by this evidentiary ruling because
Kight testified that he had not been counseled about his behavior before he was
                                          -6-
terminated. It also asserts that Kight's counsel made a misrepresentation in his closing
statement by saying that there were no disciplinary records in his file.2

        The district court concluded that Kight's CAR was not relevant because it had
been issued four years before his termination and it had not been considered by those
involved in the decision. Moreover, none of AutoZone's witnesses were familiar with
the context of the review for it had been issued by a manager no longer employed with
the company. The district court has wide discretion in admitting and excluding
evidence so long as its exercise of discretion does not unfairly prevent a party from
proving its case. Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc.,
254 F.3d 706, 716 (8th Cir. 2001). The district court's evidentiary decision "will not
be disturbed unless there is a clear and prejudicial abuse of discretion." Bennett v.
Hidden Valley Golf and Ski, Inc., 318 F.3d 868, 878 (8th Cir. 2003) (citation
omitted). If the court erred by excluding the CAR, reversal would only be appropriate
if the error affected a substantial right of the moving party. Fed. R. Evid.103(a); Fed.
R. Civ. P. 61; McPheeters v. Black & Veach Corp., 427 F.3d 1095, 1101 (8th Cir.
2005).

       It is uncontested that the 1998 CAR was not consulted in AutoZone's decision
to terminate Kight, and it was not included in Bagwell's investigative file. The 1998
review was four years before Kight's termination, and the CAR was his only
disciplinary record. We conclude that the CAR would not have created an inference
that Kight had a pattern or practice of abusive behavior and that it lacked context. It
had been given to Kight by a prior manager who was not called to testify, and none
of AutoZone's witnesses were familiar with the review or the conduct that led to the
issuance of the CAR. Furthermore, its charges were broad and without detail
("disruptive behavior" and "conduct detrimental to AutoZone").


      2
       The parties dispute the meaning of "file" in this context– AutoZone argues that
it meant Kight's employment file, and Kight argues it referred to his investigative file.

                                          -7-
       The district court is uniquely suited to assess the "relevance and probative value
of the testimony," McPheeters, 427 F.3d at 1102, and AutoZone has failed to
demonstrate that the district court exercised its discretion in a way that prevented it
from proving its case. See Wheeling, 254 F.3d at 716. AutoZone had alternate ways
to challenge Kight's testimony because its list of witnesses included several recent
coworkers who could have testified about his behavior in the store, but they were not
called to the stand. Although AutoZone argued that it sought to introduce the 1998
CAR to show that Kight had notice that he could be terminated for abusive behavior,
he himself testified to that fact. We conclude that the district court did not abuse its
discretion in excluding the 1998 CAR.

      AutoZone also argues that the district court erred in excluding the CARs and
termination notices for four other employees. AutoZone contends that these
employees were similarly situated to Kight and that the documents would have
demonstrated that he had been treated the same as younger employees with similar
behavior problems. Their testimony would have supported its argument that the
nondiscriminatory reasons offered for terminating Kight were not pretextual.

        The district court determined that the CARs of the other employees were not
relevant because AutoZone had failed to call them as witnesses or to offer any history
about their employment situations. In its order denying the motion for judgment as
a matter of law and a new trial, the district court concluded that AutoZone had not
been prejudiced by excluding the CARs because regional manager Todd Sittig had
testified that he had terminated younger employees for conduct similar to Kight's
conduct.

       To be able to introduce evidence comparing the plaintiff to other similarly
situated employees in a discrimination case, the other employees must have been
"similarly situated to the plaintiff in all relevant respects." Forrest v. Kraft Foods,
Inc., 285 F.3d 688, 691-92 (8th Cir. 2002) (citations omitted). AutoZone argues that
the employees whose reviews and termination notices were excluded are similarly
                                            -8-
situated because they worked for stores in the same region and they had also been
terminated by Todd Sittig and investigated by Bagwell. AutoZone's offer of proof did
not include such facts (except for the fact that Bagwell had investigated the cases), and
it has not pointed to any evidence in the record that shows these employees were
terminated by Sittig. His signature is not included on any of the CARs or termination
notices, and he did not testify that he had fired any of these specific individuals.
When employees have been terminated by different decisionmakers, it would be rare
for them to be considered similarly situated because any difference in treatment may
well be attributable to nondiscriminatory reasons. Tate v. Weyerhaeuser Co., 723 F.2d
598, 606 (8th Cir. 1983).

       There is also no evidence establishing that the other employees engaged in
behavior similar to Kight's conduct. Employees are not similarly situated if they have
engaged in differing degrees of misconduct. Forrest, 285 F.3d at 691-92 (plaintiff not
similarly situated when plaintiff's disciplinary record was more serious than the
compared employees), Hiatt v. Rockwell Int'l Corp., 26 F.3d 761, 770-71 (7th Cir.
1994) (plaintiff fired for falsifying documents was not similarly situated to employees
disciplined for drinking on job). The CARs cite only generalized categories of
violations without indicating specific acts linked to the employees so there is no way
to make a precise comparison. Moreover, some of the types of infractions listed in the
other CARs are different from the reasons given for Kight's termination. For example,
other employees were terminated for violating the company's "employee relations
policy" or "threatening physical harm," but Kight's termination notice cited
"inappropriate comments, misconduct toward customers, unprofessional behavior,
conduct unbecoming an AutoZoner, conduct detrimental to AutoZone and loss of
confidence." Without more details about the other employees' behavior, it would be
impossible for a fact finder to determine if they were similarly situated to Kight.

      Finally, there is nothing in the record that shows the ages of the four employees.
AutoZone argues that Bagwell would have testified that they were younger than the
protected age level, but the documents in the record do not list the ages. The district
                                           -9-
court excluded these documents because AutoZone had not developed the employees'
history or called them as witnesses. AutoZone has not offered any more context about
the employees' history on appeal. AutoZone has not shown that the four employees
were similarly situated to Kight in "all relevant respects," Forrest, 285 F.3d at 691-92,
and we conclude that the district court did not abuse its discretion in excluding the
documents.

       AutoZone next argues that the court wrongfully submitted the issue of
willfulness to the jury and liquidated damages are not appropriate. An improperly
dismissed employee is entitled to double recovery if he shows that his employer
willfully violated the ADEA. See 29 U.S.C. § 626(b); Spencer v. Stuart Hall Co.,
Inc., 173 F.3d 1124, 1129 (8th Cir 1999). A willful violation occurs if "the employer
either knew or showed reckless disregard for the matter of whether its conduct was
prohibited by the statute." Hazen Paper Co. v. Biggins, 507 U.S. 604, 615 (1993);
Spencer, 173 F.3d at 1129.

       AutoZone has not preserved this issue because its counsel did not object at the
time the willfulness instruction was given. Johnson v. Houser, 704 F.2d 1049,
1051(8th Cir. 1983) (per curiam). In order for a party to challenge a jury instruction
on appeal, it must make an objection before the jury retires to deliberate. Fed. R. Civ.
P. 51. The objection must be "sufficiently specific to bring into focus the precise
nature of the alleged error." Houser, 704 F.2d at 1051. AutoZone argues that its
counsel's statement supporting the court's original decision not to give the willfulness
instruction was sufficient to preserve its position. That comment was not an objection,
however, and it did not offer any reason why a willfulness instruction would be
improper. Counsel was informed of the text of the instruction before the jury was
instructed and was notified that it would be given if the jury found for the plaintiff.
AutoZone had an opportunity to object at that point and also when the instruction was
given, but it did not.



                                          -10-
       Because AutoZone did not object to the jury instruction, we review it for plain
error. See U.S. v. Patient Transfer Service, 465 F.3d 826, 827-28 (8th Cir. 2006).
Our review is limited to whether the error "seriously affected the fairness, integrity,
or public reputation of the judicial proceedings," and we will overturn the district
court's decision for plain error only if a miscarriage of justice would otherwise result.
Slidell, Inc. v. Millennium Inorganic Chemicals, Inc., 460 F.3d 1047, 1054 (8th Cir.
2006) (citations omitted).

        Kight offered evidence during trial that Sinor made age based remarks,
launched and influenced the investigation that led to Kight's termination, and
threatened other employees regarding their comments about Kight during the
investigation. Kight testified that he told Bagwell about Sinor's age related comments
and intent to get him fired, but Bagwell did not investigate his complaints. Kight also
testified that his attempts to make an official complaint to Sinor's manager about his
behavior were rebuffed. Kight presented sufficient evidence upon which the jury
could have relied in determining that AutoZone knew or should have known that its
conduct could violate the ADEA. See Spencer, 173 F.3d at 1129. The jury instruction
properly stated the legal standard for determining whether liquidated damages are
warranted, and it was not confusing or misleading. See Brown v. Sandals Resorts
Intern., 284 F.3d 949, 953 (8th Cir. 2002). We conclude that submission of the
willfulness jury instruction was not plain error.
        The company asserts that the erroneous evidentiary rulings and jury instruction
required a new trial. We review the denial of a motion for a new trial for an abuse of
discretion, with great deference to the district court's ruling. Butler v. French, 83 F.3d
942, 943 (8th Cir. 1996). A new trial is appropriate when the verdict was against the
clear weight of the evidence, was clearly excessive, or was the result of passion or
prejudice. MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 930 (8th Cir. 2004).
Given our conclusion that the district court did not err in excluding Kight's CAR and
the other CARs and termination notices or in giving the willfulness instruction, a new
trial is not warranted.

                                          -11-
       AutoZone finally argues that there was insufficient evidence in support of the
verdict so the district court should have granted its motion for judgment as a matter
of law. Denial of a motion for judgment as a matter of law is reviewed de novo,
applying the same standard as the district court. Belk v. City of Eldon, 228 F.3d 872,
878 (8th Cir. 2000). The standard of review for sufficiency of proof in an age
discrimination suit is "whether [the plaintiff] produced sufficient evidence to allow a
jury reasonably to find that [the employer] intentionally discriminated against him on
the basis of his age." Denesha v. Farmers Ins. Exchange, 161 F.3d 491, 497 (8th Cir.
1998)(citation omitted).

        Kight presented evidence during trial that his supervisor Sinor repeatedly made
negative age related comments and general comments that he did not like working
with old people. Kight introduced evidence that he had received AutoZone's highest
evaluation ranking in his two performance reviews prior to being terminated, and that
Sinor had never documented any complaints about his behavior prior to initiating
Bagwell's human resources investigation in December 2002. Kight testified that he
attempted to complain to upper management about Sinor's disparaging remarks but
his attempts were rebuffed. He also offered evidence that Sinor threatened individuals
to make statements against him during the investigation and that Bagwell had
manipulated the written reports of the interviews with employees. Kight offered
sufficient evidence upon which a reasonable juror could have relied in reaching the
verdict. We conclude that the district court did not err in declining to overturn the
jury verdict and denying judgment as a matter of law.

      Accordingly, we affirm the judgment of the district court.
                    _________________________________




                                         -12-
