The Honorable Richard H. Kyle, United States District Judge for the 1 District of Minnesota, sitting by designation.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 97-3891

___________ Debra A. Smith and Mark A. * Thomas, * * Appellees, * Appeal from the United

* States District Court for
v. * the Eastern District of * Arkansas. Riceland Foods, Inc., * * Appellant. *

___________ Submitted: June 9, 1998 Filed: August 5, 1998

___________ Before WOLLMAN and MURPHY, Circuit Judges, and KYLE, District Judge. 1

KYLE, District Judge
Riceland Foods, Inc. ("Riceland") a ppeals following a jury verdict in favor of the Appell ees, Debra Smith (“Smith”) and Mark Thomas (“Thomas”), on their retaliation claims under Title VII of the Civ il Rights Act of 1964. Riceland argues that the district court e rred in denying its motions for judgment as a matter of law and that it wa s prejudic ed by comments that the district court made to the jury after it returned a n inconsistent verdict and before the judge directed them to continue deliberating.-2-

Ricelandfurther appeals the district court’s award of attorneys’ fees to the Appellees. We affirm in part and reverse in part.
I. Background
Riceland is an Arkansas corporation that process es raw agricultural commodities,
su ch as soybean, into finished products. It has a soybean processing division i n Stuttgart, Arkansas. During the rel evant time period, Leo Gingras (“Gingras”) was the manager of this division.
In 1981, Thomas, an African America n, began working for Riceland as a bin and leg fitter in the Stuttgart soybean processing division. At the time of his discharge i n 1995, Tho mas was employed as a meal loader. In 1994, Riceland hired Smith, a n African American, as an assistant plant operator in the Stuttgart soybean processin g divis ion. Shortly after Smith began working for Riceland, she and Thomas becam e romantic ally involved, and the two lived together. Management personnel at Riceland
were aware of this relationship and knew that Smith and Thomas were contemplatin g marriage.
A. The Plant Operator Position

In September 1995, Thomas applied for a plant operator position. Donni e McFer rin(“McFerrin”), who made the hiring decision, told Thomas that he could no t select him for the position because company policy prohibited married people fro m working together, and Smith already worked in that department. McFerrin stated that Gingras had informed him of this policy when he spoke with Gingras about the ope n position. Smith also applied for the plant operator position. McFerrin selected Joh n McNally (“McNally”), a white employee, for the plant operator position, even though he had three months less seniority than Smith.-3-

Smi thbelieved that McFerrin’s decision to hire McNally was motivated b y discriminationon the basis of both gender and race, and as a result, she filed a charge of discrimination with the EEOC on October 12, 1995. Although Thomas did not file a charge of discrimination, he assisted Smith in filing her charge.

B. The Case Center
In December 1994, Riceland opened the CaseCenter, a computer learning center forits employees. Riceland required its employees to spend at least four hours pe r month working on educational computer programs in the Case Center, but it would pay employees up to twelve hours per month for such work. Myra McNeil (“McNeil”) was in charge of administering the Case Center.

Ricelandpaid its employees for the number of hours that they spent in the Case Center (herei nafter “door time”), rather than for the amount of time they actually spent working on th e computer programs (hereinafter “lesson time”). Riceland kept track of the amount o f door time by having employees scan their employee badges when the y ent ered the Case Center. Most employees had discrepancies between their door tim e and their lesson time because of the time it took them to log onto the com puter and select
a p rogram. Lesson time also did not account for time an employee spent talking with McNeil or taking bathroom or smoking breaks.
C. Investigation of Case Center Abuse

In late November 1995, employees informed McNeil that employees wer e entering the Case Center but not utilizing the computer lessons while they were there. McNeil re layed this information to Gingras, who then directed her to conduct a n investigation into the alleged abuse.
During the course of her investigation, McNeil compared the pay records and-4-

computer re cords of the employees who were using the Case Center. McNei l acknow ledgedthat many employees had discrepancies between their door time an d lesson time. If a discrepancy was large enough, McNeil would look at the employee’s lesson time for the days the employee had been paid to see if she could verify whether the employee had spent any time on a computer lesson that day. If the employee’s lesson tim e indicated that he or she had spent some time working on a lesson for the days i n quest ion, McNeil would not report this employee to Gingras. At least eight employees had time discrepanc ies larger than those of the Appellees, but they were not reported to Gingras.
On approximately December 7, 1995, McNeil reported to Gingras that Smith had been abusing the Case Center. McNeil told Gingras that a comparison of the door time and the lesson time s howed that Smith had been paid for 16.5 hours in the Case Center, but that she had only spent 8.5 hours working on lessons. The records also showed that Smith had been paid for 4 hours of time spent in the Case Center on two days, but her lesson time revealed that Smith could have been working on lessons for only a fe w minute s on those days. McNeil also claimed that she had received verbal statement s from three employees implicating Smith in Case Center abuse.

Based on McNeil’s report, Gingras decided to fire Smith. Gingras testified that he decided to terminate her because Riceland had “multiple statements from employees” which indicated that Smith had abused the Case Center by clo cking into the Case Center, logging onto the computers , and then leaving and coming back at a later time to log out. On December 8, 1995, Gingr as met with Smith and told her that she was being fired for falsifying company records.

Th e evidence at trial, however, revealed that only one of the employee s implicating Smith actual ly gave a statement to McNeil before Smith was fired. Garland Peterson (“Peterson”) told McNeil that on November 28, 1995, Smith and Thomas were logged onto a computer when he arrived in the Case Center, and he was there forThe evidence at trial revealed that another of the three employees who had 2 allegedly given a statement implicating Smith and Thomas, Vernon Moore (“Moore”), did not give McNeil his statement until after both Smith and Thomas were terminated. The third statement was allegedly given by James Collum (“Collum”), but neither party has directed the Court to any portion of the record indicating the substance of his statement or when he orally gave it to McNeil. Collum did provide a written statement to McNeil on December 15, 1995, but this statement was not admitted into evidence. At the time Thomas was fired, McNeil had received Peterson’s verbal and 3 Collum’s written statement, both accusing Thomas of abusing the Case Center. -5- app roximately 30 minutes before they returned to log out. The time records fro m 2 November 28, 1995, indicated that neither Smith nor Thomas had abused the Ca se Center
on t hat day. Moreover, the records revealed that Peterson had been paid for over tw o hours of tim e spent in the Case Center on November 28, 1995, but he had no tim e regi stered on the computer for that day. McNeil did not investigate Peterson’ s discrepan cy, and Peterson was not reported to Gingras. Finally, the testimony at tria l established that another emplo yee, Bobbie Fread (“Fread”), had been implicated in only
on e employee statement for being absent from the Case Center for approximately 2 0 minutes when she was logged onto a computer. Because the records could not verify the employee’s statement, Fread was only given a warning.
Thomas did not have any discrepancies between his door time and his lesso n time. Ric eland had paid him for fewer hours than he had spent in the Case Cente r because he was still on the clock in the plant dur ing some of this time. Riceland allowed emplo yees, with their supervisor’s permission, to go to the Case Center and work o n computer lessons when plant act ivity was slow. On approximately December 18, 1995, McNeil reported Thomas to Gingras because he was allegedly implicated in the thre e stateme nts that she had received regarding Smith. Gingras met with Thomas o n 3 December 19, 1995, and advised hi m that other employees had given written statements that he was abusing the Case Center, an d that Riceland had decided to terminate him for falsifying company records.-6-

Riceland disciplined three ot her employees for abusing the Case Center. Gingras clai med that these employees were not fired because Riceland did not have employe e statements implicating them in abusing the Case Center.

After their terminations, Smith and Thomas filed claims against Riceland. Smith alleg ed that Riceland had denied her a promotion and subsequently terminated he r because of her race and gender, in violation of Title VII and 42 U.S.C. § 1981. Sh e furtheralleged that Riceland discharged her in retaliation for filing a charge o f discriminationwith the EEOC, in violation of Title VII. Thomas alleged that Riceland had denied him a promotion and terminated him because of his race and that it als o dischargedhim in retaliation for assisting Smith with the filing of her discriminatio n charge, in violation of Title VII.

The case proceeded to a trial by jury in June 1997. The district court denie d motions for judgment as a matter of law. The jury returned a verdict in favor of Riceland
onAppellees’ failure to promote and discriminatory discharge claims. With respect to Appelle es’ retaliation claims, the jury returned a verdict in favor of Smith and Thomas, awarding Smith $20,750 in damages and Thomas $31,500 in damages.

II. Denial of Riceland’s Motions for Judgment as a Matter of Law

Riceland claims that the district court erred in denying its motions for judgment as
a matte r of law on the Appellees’ retaliation claims. It contends that both Smith an d Thomas failed to establish the third element of their prima facie cases of retaliation -- a causal connection between their statutorily protected activity and their termination -- and that both failed to produce evidence that Riceland’s leg itimate, nonretaliatory reasons for their discharges were pretextual.-7-

This Court reviews a district court’s denial of a motion for judgment as a matter of law de novo. Coffman v. Tracker Marine , 141 F.3d 1241, 1245 (8th Cir. 1998). We must determine whether there was sufficient evidence to support a jury verdict. Id. A jury’s verdict must be affirmed “un less, 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.” Cross v. Cleaver , 142 F.3d 105 9, 1066 (8th Cir. 1998). If, however, reasonable persons could differ as to the conclusion to be draw n from the evidence, the motion must be denied. Ryther v. KARE 11 , 108 F.3d 832, 844 (8th Cir.) (en banc), cert. denied , 117 S. Ct. 2510 (1997).
Title VII prohibits employer s from retaliating against employees who file charges of discrimination or who assist others in opposing discrimination. 42 U.S.C. § 2000e3(a). The legal framework for analyzingretaliation claims under Title VII is the familiar three-stage, burden-shifting test set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1 817 (1973). See , e.g. , Stevens v. St. Louis Univ. Med. Ctr. , 97 F.3 d 268, 270 (8th Cir. 1996).
Under this analysis, a plaintiff must first es tablish a prima facie case of retaliation. Coffman , 141 F.3d at 1245. To do this, a plaintiff must show that: (1) she engaged i n st atutorily protected activity; (2) she suffered an adverse employment action; and (3 ) there was a causal connection between the ad verse employment action and the protected activity. Stevens , 97 F.3d at 270. A defendant must then rebut the plaintiff’s prima facie case by presenting evidence o f a legitimate, non-retaliatory reason for the action it took against the plaintiff. Coffman , 141 F.3d at 1245. If the defendant makes this showing, the plaintiff must then show t hat the defendant’s proffered reason was a pretext and that illegal ret aliation was a motivating reason for the defendant’s decision. Id. Th e fundamental issue is whether the Appellees produced sufficient evidence to allow a jury
rea sonably to find that Riceland intentionally retaliated against them because of thei r statutorily protected conduct. See Ryther , 108 F.3d at 838.-8-

A. Thomas
Riceland contends that Thomas failed to produce sufficient evide nce to support the third element of his prima facie case -- that there was a causal connection between hi s statuto rily protected activity and his termination. It argues that there was no evidenc e pre sented at trial upon which a reasonable jury could conclude that anyone at Riceland knew that Thomas had helped Smith file her charge of discrimination, and that without such knowledge, a causal connection between Thomas’ assistance of Smith and hi s termination cannot exist.
In order to establish the third element of his prima facie case of reta liation, Thomas needed to present evidence that Riceland knew that he had engaged in statutoril y protected activity. See Simon v. Simmons F oods, Inc. , 49 F.3d 386, 389 (8th Cir. 1995) (stati ng that a plaintiff must show that “the employer had actual or constructiv e knowledge of the protected conduct” in order to establish a prima facie case o f retaliat ion); Wolff v. Berkley, Inc. , 938 F.2d 100, 103 (8th Cir. 1991) (stating that a causal link between statutorily protected activity and an adverse employment actio n “does not exist if the employer is not aware of the employee’s statutorily protecte d activity”). We find that, base d upon the evidence at trial, no reasonable jury could have found tha t Riceland knew that Thomas had helped Smith in filing her charge o f discrimination, and therefore, no reasonable jury could have found that a causa l connection existed between Thomas’ assistance of Smith and his termination.

Thomas a cknowledges that there was no direct evidence at trial that anyone a t Riceland knew tha

t he had helped Smith file her charge of discrimination. Despite this, he contends that because Riceland knew that he and Smith were living together and had treated them as a married c ouple in the past, and because Riceland knew that Smith had filed a charge of discrimin ation, the jury could reasonably have concluded that Riceland must have known that Thomas aided Smith in filing her charge. We conclude that this evidence is insuffic ient to support a reasonable finding that Riceland knew that Thomas-9-

had engaged in statutorily prote cted activity. Instead, the jury’s verdict was based upon complete speculation, rather than any reasonable inf erences created by the evidence, that Riceland knew th at Thomas had helped Smith file her charge. Riceland, therefore, was entitled to judgment as a matter of law on Thomas’ retaliation claim.

In the alter

native, Thomas argues that he is not required to show that he engaged in statutorily protected activity about which Riceland had kno wledge in order to establish his prima facie case. Instead, he asks this Court to expand the protection given by Title VII’s anti-retaliatio n provision to prohibit employers from taking adverse action against emplo yees whose spouses or significant others have engaged in statutorily protecte d activity against the employer.

Ti tle VII prohibits employers from discriminating against an employee “because he has opposed any prac tice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an invest igation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a)

. This Court’s decisions on retaliation claims have consistently held that, in order t o est ablisha prima facie case of discrimination, the employee must have engaged i n statutorily protected activity. See , e.g. , Smith v. St. Louis Univ. , 10 9 F.3d 1261, 1265-66 (8th Cir. 1997); Stevens , 97 F.3d at 270. We believe tha t the rule advocated by Thomas

-- tha t a plaintiff bringing a retaliation claim need not have personally engaged i n statut orily protected activity if his or her spouse or significant other, who works for the same employer, has done so -- is neither supported by the plain language of Title VII nor necessary to protect thi rd parties, such as spouses or significant others, from retaliation. S e e Holt v. JTM Indus., Inc. , 89 F.3d 1224, 1226-27 (5th Cir. 1996), cert. denied , 117 S. Ct. 1821 (1997). Title VII already offers broad protection to such individuals b y prohibiting employers from retaliating against employees for “assist[ing] or participat[ing] in any manner”in a proceeding under Title VII. Accordingly, we hold that a plaintif f bringing a retaliation claim under Title VII must establish that she personally engaged in the protected conduct.In its appeal, Riceland argues that the district court improperly excluded 4 statements that Thomas had made at the meeting where Gingras informed him that he was fired. Because we conclude that Riceland was entitled to judgment as a matter of law with respect to Thomas’ retaliation claim, we need not address this issue. In support of its contention, Riceland relies upon Nelson v. J.C. Penney Co., 5 Inc. , 75 F.3d 343 (8th Cir.), cert. denied , 117 S. Ct. 61 (1996), in which we held that, in light of all of the circumstances of the case, including the facts that the supervisors who made the decision to fire the plaintiff did not discuss his charge of discrimination before he was fired and that the plaintiff had been disciplined and warned about the status of his job before his employer became aware of his charge of discrimination, “we cannot agree with the trial court that the mere coincidence of timing established a submissible case of retaliatory discharge.” Id. at 346. In making this determination, it is unclear whether the Nelson court was addressing the issue of whether the plaintiff had established his prima facie case of retaliation or the issue of whether he had submitted sufficient evidence to show that the defendant’s proffered reason for his termination was a pretext for retaliation. We believe that Nelson should not be read to stand for the proposition that timing alone is never sufficient to establish the third element of a prima facie case of retaliation. -10- Because we conclude that the district court erred in denying Riceland’s motion for judgment as a mat

ter with respect to Thomas’ retaliation claim, we reverse the decision of the district court on Thomas’ retaliation claim. 4

B. Smith
Riceland argues tha

t Smith failed to establish the third element of her prima facie
case -- that there was a causal connection between the filing of her charge o f discrimin ation and her termination. Riceland contends that the timing between Smith’s charge of discrimination and her discharge is insufficient, as a matter of law, to create an inference of a causal connection between the two.

We f ind that Riceland’s position is not supported by Eighth Circuit precedent

. This Court has noted that a plaintiff can establish a c ausal connection between statutorily pr otected activity and an adverse employment action through circumstantial evidence , such as the timing between the two events. See Reich , 32 F.3d at 365 n.4. 5-11-

Moreover, this Court has found that periods of time between sta tutorily protected activity andadverse employment actions longer than the three-month period in the instant case were sufficient to create an inference of the requisite causal connection. See, e.g., Smith , 109 F.3d at 1266. Finally, we believe that Smith has presented evidence, in addition to the timin g between the filing of her charge and her termination, that creates a causa l
conne ction between the two events. She presented evidence that management a t Ri celandconfronted her about filing her charge and that other employees who had no t filed charges of discrimination were not investigated as closely or punished as severely
as she was, even though they had been paid for time spent in the Case Center on days wh en they had no lesson time. Based upon this evidence, we find that Smith ha s presented sufficient evidence upo n which a jury could reasonably conclude that a causal connection existed between the filing of her charge of discr imination and her termination.
Riceland also argues that Smith failed to present evidence that its legitimate, nonretaliator y reason for her termination -- that computer records and other employee s demonstrated that she had abused the Case Center -- was a pretext for illegal retaliation. After having reviewed the record carefully, we find that Smith presented sufficien t evid ence to allow a reasonable jury to find that Riceland intentionally discriminate d against her on the basis of having filed a charge of discrimination against Riceland.

In addition to the evidence establishing her prima facie case of retaliation, Smith presented ev idence at trial showing that Riceland’s explanation for her termination was
a fabric ation. McNeil testified that, at the time she reported Smith to Gingras, thre e employees had given her oral statements implicating Smith for ge tting paid for time in the Case Center when she was not present. In addition, Gingras testified that he decided to fire Smith because the company had numerous statements from other-12-

employees implicating her in Case Center abuse. The evidence at trial, however , indicated that at the time of Smith’s termination, McN eil had received only one such oral complaint implicating Smith. Moreover, this complaint came fro m an individual who had been paid for time spent in the Case Center when he had no registered lesson time, but he was not investigated further. Thus, the jury could have reasonably concluded tha t Gingras’ stated reason for firin g Smith was not true. In addition, the testimony revealed th at other employees who had not filed charges of discrimination but had been paid for ti mespent in the Case Center on days when they had no lesson time were no t investigated as closely or punished as harshly as Smi th and that their explanations for the discrepan cies in their time were accepted by Riceland. This evidence is sufficient t o support the jury’s verdict in favor of Smith on her retaliation claim. We conclude , ther efore, that the district court properly denied Riceland’s motions for judgment as a matter of law.
III. Inconsistency in the Verdict Form

Th e verdict form submitted to the jury on Smith’s retaliation claim required th e jury to ans wer the following interrogatory if it found in favor of Smith: “Has it bee n proved by the greater weight of the evidence that Defendant would have discharge d Plaintiff regardless of her filing an EEOC charge of discrimination?” The verdict form also instru cted the jury that it should answer questions regarding Smith’s damages only if it answered the previous question “no,” and if it answered “yes,” then it had completed its deliberations on Smith’s retaliation claim.
When the jury originally returned it s verdict, it indicated that it had found in favor of Sm ith on her retaliation claim. The jury also answered “yes” to the question o f whether Rice land would have fired Smith even if she had not filed an EEOC charge

. Despite t he district court’s instruction to the contrary, the jury answered the damage s question, finding that Smith had lost wages and benefits equaling $20,750.-13-

After publishing the jury’s verdict, the district court discussed the jury’s findings
on Smith’s retaliation claim with the attorneys. The district court indicated that i t believed that there was a conflict in the jury’s verdict o n the retaliation claim and that the jury had been confused by the court’s instruction because it had awarded Smith damages, in contradiction to the instruction it had been given about when to answer the damages que stions. After hearing objections from counsel, the district court made the following statement to the jury:

There ap pears to be a conflict in the verdict. Now, relative to o n the reta liation claim of plaintiff Debra Smith as submitted i n instruction number 12, we find in favor of Debra A. Smith plaintiff. Then you move down and here is what the question is: Has it been proved by the

greater weight of the evidence that defendant would hav e discharged plaintiff regardless of her filing an EEOC charg e of discrimination? Now let me say this. The question could have been drafted more clear. The answer you put is yes.
Let me explain what the question is really saying. What you did , you w ent ahead and found that she lost wages of $20,750, n o com pensatory damages. The question is this: if she had not file d the EEOC discrimination charge would she not have bee n discharged? Would Riceland have not discharged her i f she had not fi ledthe EEOC claim? But the way the question -- the lawyer s drafted thi s. The Court went along with it. It could have bee n clearer. But there is a conflict, becau se in order to justify recovery, it should have been no.

. . . What I’m going to do is return the se forms to you and let you retire to the jury room and consider these two verdicts.
(Tr. 830-833.) The jury deliberated for a brief period of time, and then returned aSmith argues that Riceland did not object to the manner in which the district 6 court instructed the jury about the inconsistency. We reject this contention. In its objections to the district court on this issue, Riceland stated: “Just for purposes of the record, Your Honor, I think your oral statements to the jury before they went back out changed the verdict form.” (Tr. 841.) This objection did raise the issue of the manner in which the district court addressed the jury, thus preserving the issue for appeal.
-14- verdict t hat had one change from their previous verdict; they answered “no” to th e ques tionof whether Riceland would have discharged Smith even if she had not filed a charge of discrimination. Next to this question, the foreperson wrote the word “error.”

Riceland argues that the district court abused its discretion in the manner that i t instructed the jury about the discrepancy between its answer to the interrogatory regarding whether Riceland would have discharged Smith if she had not filed a charge of discrimination and its answering of the damages questions. Riceland contends that the distric t court’s comments caused the jury to believe that it was required to go back and change its answer to the interrogatory.
A district court has discretion to decide whether a jury’s fin dings on a verdict form are incomplete, confusing, or inconsistent and whether to resubmit the claim to the jury. 6 Wi lliams v. KETV Television, Inc. , 26 F.3d 1439, 1443 (8th Cir. 1994); Hauser v

. Kubalak , 929 F.2d 1305, 1308 (8th Cir. 1991). “The district judge, who has observed the jury during the trial, prepared the s pecial verdict questions and explained them to the ju ry, is in the best position to determine whether the answers reflect confusion o r uncerta inty.” Hauser , 929 F.2d at 1308. If a district court decides to address a jury on
an inconsist ency in its findings, the court must not pressure or coerce the jury, eithe r explicitly or subtly, to reach a certain result through its direction to the jury to reconsider its findings. See Karl v. Burlington N. R.R. Co. , 880 F.2d 68, 73 (8th Cir. 1989).After the district court read the jury’s second verdict on Smith’s retaliation 7 claim, the following exchange took place between the court and the jury foreperson:

The Court: In order to make the record crystal clear the clerk did not read, on the left side of this question, has it been proved by the greater weight of the evidence that defendant would have discharged plaintiff regardless of her filing an EEOC charge of discrimination? Presently no is checked. Previously yes was checked and there’s a notation “error.”

. . . Was there a misunderstanding of that term is the reason that was checked? The Foreman: I thought we had to -- I thought we had them wrong. The way we had them marked yes, so I thought we were supposed to go back -- I asked everybody in there and they said mark no. So I marked no. The Court: What I’m saying initially yes was checked and an error was made initially in checking yes. Is that what you are saying? The Foreman: Yes, Your Honor.

. . . The Court: And as I understand it, initially you checked yes, but you had planned to check no, is that correct? The Foreman: Yes, Your Honor. (Tr. 836-38.) The district court then asked the jurors individually whether they had initially intended to answer no to the interrogatory question but had mistakenly checked yes, and they all indicated that the court accurately described what had occurred. ( Id. at 838-840.) -15- We find that the dist

rict court did not abuse its discretion by the manner in which it addressed the jury and instructed it on the inconsistency between its answer to th e interrogatory and its award of damages on Smith’s retaliation claim. Riceland argues that the exchange that

took place between the district court and the jury foreperson after the court read the second verdict on the retaliation cl aims demonstrates that the district court pressured the jury to change its verdict. We disagree. A review of the 7Riceland has also argued on appeal the district court abused its discretion in the 8 amount of attorneys’ fees and costs it awarded Appellees. In light of the fact that we have determined that Thomas is no longer a prevailing party because Riceland was entitled to judgment as a matter of law on his retaliation claim, we remand the issue of the appropriate amount of attorneys’ fees to the district court. -16- record indicates that th e jury foreperson initially made a mistake and did not answer the interrogatory in a manner con sistent with how the jury intended to answer that question. While the district court could have been more clear in its instructions to the jury on the inco nsistency in its verdict, we do not believe that it pressured the jury, through it s comments to the jury, to change its verdict in favor of Smith. 8

We affirm the district court with respect to Smith’s retaliation claim, reverse with
re spectto Thomas’ retaliation claim, and remand the case to the district court fo r proceedings consistent with this opinion.
A true copy.

Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.