United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-1953

___________________________

Ray Nassar, Ph.D.; Gena Smith

lllllllllllllllllllll Plaintiffs - Appellees

v.

Earnestine Jackson, Individually & in her official capacity as a Hughes School

Board member

lllllllllllllllllllll Defendant - Appellant

Jimmy Wilkins, Individually & in his Capacity as Superintendent of the Hughes

School District

lllllllllllllllllllll Defendant

Hughes School District

lllllllllllllllllllll Defendant - Appellant

Hughes School Board, Members in their Official Capacities; Rudolph Robinson,

in Official Capacity as member of Hughes School Board; Demarcus Burks, in

Official Capacity as member of Hughes School Board; Leitha Cupples, in Official

Capacity as member of Hughes School Board; Irene Combs, in Official Capacity

as member of Hughes School Board; Jeff Spaletta, in Official Capacity as member

of Hughes School Board; W E Duckworth, in Official Capacity as member of

Hughes School Board

lllllllllllllllllllll Defendants

____________
 Appeal from United States District Court 

for the Eastern District of Arkansas - Jonesboro

____________

 Submitted: September 8, 2014

 Filed: March 3, 2015

____________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

____________

GRUENDER, Circuit Judge.

Believing that the school district of Hughes, Arkansas (“school district”) fired

them because of their race, Ray Nassar and Gena Smith sued and won under several

legal theories. The school district and one school-boardmember, Earnestine Jackson,

now appeal several orders of the district court. We affirm in part and vacate and

remand in part.

I.

The school district hired Ray Nassar as superintendent in 2008. While

superintendent, Nassar hired Gena Smith as a business manager. The school district

renewed Nassar’s contract for the three yearsrunning fromJuly 1, 2010 until June 30,

2013. Over those three years, the contract provided for a total salary of $274,000,

plus benefits.

Both Nassar and Smith are white. After the racial composition of the school

board shifted from a white majority to an African-American majority, Nassar’s

already-poor relationship with two African-American board members deteriorated

further. One of those board members was Earnestine Jackson. At one public

meeting, she referred to Smith as Nassar’s “girlfriend,” though both Nassar and Smith

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are married to other people. Jackson also said at a meeting that Nassar “lie[s].” The

hostility devolved into a profanity-laced exchange, and soon after, on February 8,

2011, the school district fired Nassar without a hearing. A few months later, the

school district fired Smith, also without a hearing.

Nassar and Smith sued the school district, Jackson, and others, alleging

violations of due process, unlawful racial discrimination, and breach of contract. 

Nassar and Smith both claimed thatJackson’s “girlfriend” comment was defamatory,

and Nassar individually complained ofJackson’s saying that he “lie[s].” The district

court granted partial summary judgment for Nassar and Smith on the due-process

claims, reserving the remaining claims and the determination of damages for trial.

At trial, an economist testified to different measures of Nassar’s damagesfrom

losing his job. The net salary and benefits lost between the date of Nassar’s firing

and the trial were worth $195,639.38. During cross-examination, the economist

valued at about $50,000 the salary and benefits that would have remained on Nassar’s

contract from the time of the trial until the contract would have expired. Thus,

Nassar’s damages to the end of his contract totaled about $245,639.38. The

economist also testified that the present value of Nassar’s lost salary, lost benefits,

and added travel costs for seven years after trial was $283,577.77. The school district

and Jackson did not object to the testimony about future damages.

After the close of all the evidence, the defendants moved under Federal Rule

of Civil Procedure 50(a) for judgment as a matter of law, citing only “the plaintiffs’

failure to carry their burden.” The court denied the motion and instructed the jury on

the measure of damages appropriate under each of Nassar’s and Smith’s claims. The

court further instructed the jury to reduce its awards so as not to duplicate recovery

for the same misconduct. 

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The jury found for Nassar and Smith on all claims. Specifically finding that

Nassar would not have been fired had the school district provided a proper hearing, 

the jury awarded Nassar $340,000 on his due-process claim—more than he would

have earned in salary and benefits through the end of the term of his contract—$1.00

on his discrimination claim, and $1.00 on his contract claim. The defendants then 1

renewed under Rule 50(b) their motion for judgment as a matter of law, claiming for

the first time with specificity that the discrimination claims failed for insufficient

evidence of racial discrimination and that the $340,000 due-process damages

exceeded the amount supported by the evidence. The district court denied the

defendants’ motion.

Nassar and Smith requested attorney’s fees. Their lead counsel’s usual rate

was $250 per hour, but they requested fees “more in line with the contingency fee

agreement they had with their attorneys”—about $440 per hour for lead counsel. The

court granted Nassar and Smith attorney’s fees at a rate of $375 per hour for their lead

counsel. 

II.

The school district and Jackson appealed. Their brief argues that (1) they were

entitled to judgment as a matter of law on the discrimination claims because there was

insufficient evidence of racial discrimination, (2) Jackson was entitled to judgment

as a matter of law on the defamation claims because there was insufficient evidence

of publication and “actual malice,” (3) the court should have reduced the due-process

damages awarded or granted a new trial on that issue, and (4) the award of attorney’s

fees was excessive.

The $340,000 award represented only economic damages. The jury also 1

awarded other, non-economic damages that are not at issue on appeal.

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A.

We turn first to the school district and Jackson’s argument that they were

entitled to judgment as a matter of law on the discrimination claims. They assert that

the evidence was insufficient for a reasonable jury to find racial discrimination, an

assertion that they first raised in their post-trial motion under Federal Rule of Civil

Procedure 50(b). We conclude that the school district and Jackson have waived this

issue.

Rule 50(b) provides for post-trial renewal of a Rule 50(a) trial motion for

judgment as a matter of law. A court reviewing a Rule 50(b) motion is limited to

consideration of only those grounds advanced in the original, Rule 50(a) motion. 

Graham Constr. Servs. v. Hammer &SteelInc., 755 F.3d 611, 617-18 (8th Cir. 2014). 

Rule 50(a) in turn requires that a “motion for judgment as a matter of law . . . specify

. . . the law and facts that entitle the movant to judgment.” 

The school district and Jackson did specify why they believed they were

entitled to judgment as a matter of law in their post-trial, Rule 50(b) motion. But in

their Rule 50(a) motion, the school district and Jackson’s attorney said only that:

the defendants would move for a directed verdict based on the plaintiffs’

failure to carry their burden on all but the due process claim. And I—I

could go through all the evidence, but the Court—I won’t go any

further.

This statement, which specifies neither law nor facts, lacks the particularity required

of a Rule 50(a) motion. See Alternate Fuels, Inc. v. Cabanas, 538 F.3d 969, 973-74

(8thCir. 2008) (rejecting a judgment-as-a-matter-of-law argument on appeal because

the Rule 50(a) motion “gave no legal or factual basis”); Williams v. Runyon,

130 F.3d 568, 571-72 (3d Cir. 1997) (finding the “blanket statement that ‘there is no

legally sufficient evidentiary basis for a reasonable jury to find for the Plaintiff o[n]

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any of the issues that counsel have set forth in this case’” to be “obviously

insufficient” to support a Rule 50(a) motion). Accordingly, despite the more

particular Rule 50(b) motion, the school district and Jackson’s nebulous Rule 50(a)

motion “cannot be the basis of an appeal.” Alternate Fuels, 538 F.3d at 973-74; see

2

also Canny v. Dr. Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 900-01 (8th

Cir. 2006) (explaining that issues not included in a Rule 50(a) motion are waived and

cannot be included in a Rule 50(b) motion). For this reason, we also do not consider

Jackson’s argument that the defamation claims failed for lack of publication or

“actual malice.”3

B. 

The school district and Jackson next contest the $340,000 award to Nassar on

his due-process claim. They assert that the damages could not have exceeded the

value of the salary and benefits remaining on Nassar’s contract. Expert testimony

established that this value was about $245,639.38—$195,639.38 for damages from

the date of Nassar’s firing until the trial, plus approximately $50,000 from the trial

until the end of the contract term. We conclude that the district court abused its

discretion in sustaining the $340,000 award, and with respect to this issue, we vacate

and remand with instructions to offer remittitur.

Though we have recognized an exception to this kind of waiver to prevent “a

2

manifest miscarriage of justice,” see BE & K Constr. Co. v. United Bhd. of

Carpenters and Joiners of Am., AFL-CIO, 90 F.3d 1318, 1325 (8th Cir. 1996), the

school district and Jackson have not addressed waiver of these arguments at all, let

alone asserted that an exception to waiver applies. See Alternate Fuels,

538 F.3d at 973-74 & n.3.

The defamation argument was not included in the Rule 50(b) motion either. 3

We would not consider it for that reason as well. See Unitherm Food Sys., Inc. v.

Swift-Eckrich, Inc., 546 U.S. 394 (2006). 

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The court had instructed the jury to award Nassar the economic damages

caused by the denial of due process, that is:

[a]ny wages or fringe benefits you find that the plaintiff would have

earned . . . if he . . . had received the type of hearing required under the

Constitution. In order to fairly compensate a plaintiff, any award should

put the plaintiff in no better position than he . . . would have been in if

the Hughes School District had provided the plaintiff a hearing prior to

termination.

The parties agree that the jury was properly instructed as to the measure of damages. 

Nonetheless, the school district and Jackson argue that the $340,000 award

improperly exceeded the only demonstrated value of Nassar’s lostsalary and benefits

during the term of his contract, approximately $245,639.38. 

Although Nassar asserts that this argument too was waived by the vague Rule

50(a) motion or by the lack of objection to the economist’s future-damage evidence,

we disagree. The school district and Jackson essentially argue “that the jury

instructions were proper but were misapplied by the jury . . . resulting in an incorrect

judgment.” Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 468 (8th Cir.

2013). As the school district and Jackson seek either a new trial on the issue or to

amend the judgment, “a Rule 59 motion is the appropriate vehicle.” Id. Admittedly,

the school district and Jackson argued that the award wasimproper in their Rule 50(b)

motion, not in a Rule 59 motion. But Rule 50(b)’s text explicitly allows for the

inclusion of a Rule 59 request in a Rule 50(b) motion. Moreover, as already

discussed, a Rule 50(b) motion renews only those grounds advanced in a Rule 50(a)

motion, and here the school district and Jackson’s argument would have been

premature in a Rule 50(a) motion, which must be made before the case is submitted

to the jury. The school district and Jackson could not have known at that time that

the jury would grant an excessive award. Similarly, their failure to object to the

economist’s testimony on future damages does not mean they missed their chance to

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ensure the jury followed its instructions. As such, the argument was not waived, and

we construe as a Rule 59 motion that part of the Rule 50(b) motion challenging the

$340,000 award. See Maristuen v. Nat’l States Ins. Co., 57 F.3d 673, 679 n.4 (8th

Cir. 1995) (treating a request to amend a judgment as a Rule 59 motion despite

references to Rules 50(b) and 60(b)). We review the denial of a Rule 59 motion for

abuse of discretion, Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 462 (8th Cir.

2013); Trickey v. Karman Indus. Techs. Corp., 705 F.3d 788, 807-08 (8th Cir. 2013),

and “we may reverse a district court’s denial of a Rule 59 motion where its judgment

rests on an erroneous legal standard,” Pulla v. Amoco Oil Co., 72 F.3d 648, 656 (8th

Cir. 1995). 

On appeal, Nassar does not attempt to defend the $340,000 award except to

argue that it included “front pay,” an equitable remedy from our discrimination cases,

see, e.g., Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 639, 641 (8th Cir.

1997). Claiming that “future lossissynonymous with front pay,” Nassar’s economist

testified that the present value of Nassar’s seven-year front pay was $283,577.77. 

Together with past damages of $195,639.38, this amount far exceeds what the jury

awarded, and thus, Nassar argues, the $340,000 award was justified. Front pay,

however, may be awarded only by a court, not by a jury. Id. at 641-43. Even if we

assume that front pay is available as a remedy for a due-process violation, it was error

for the court to allow the jury to award it.

4

Even assuming further that the school district and Jackson consented to a jury 4

determination and that front pay is not solely within the court’s authority, we still

believe that the jury did not follow its instruction that it award only those damages

caused by the denial of due process. Based on the evidence presented by Nassar’s

economist, the award necessarily included lost salary and benefits beyond the term

of Nassar’s contract. The award thus assumesthat Nassar’s contract would have been

renewed if he had received a proper hearing. Nassar’s brief, however, points usto no

evidence suggesting such renewal. See Tussey v. ABB, Inc., 746 F.3d 327, 339 (8th

Cir.) (finding damages speculative where plaintiffs did not cite evidence supporting

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Without the improper front pay, the only evidence of the value of Nassar’s

salary and benefits during the term of his contract was the economist’s estimate of

$245,639.38. The district court should offer remittitur to that amount. See Racicky

v. Farmland Indus., Inc., 328 F.3d 389, 400 (8th Cir. 2003). If Nassar does not

consent to remittitur, the court should conduct a new trial on this issue. See id.

C.

Coming to the matter of fees, “[w]e review the district court’s award of

attorney’s fees for abuse of discretion.” Miller v. Dugan, 764 F.3d 826, 830 (8th Cir.

2014). The school district and Jackson argue (1) that the district court improperly

enhanced the fee award to Nassar and Smith solely because of their contingency

assumption necessary to damage award), cert. denied, 135 S. Ct. 477 (2014); see also

McKenzie Eng’g Co. v. NLRB, 373 F.3d 888, 894 (8th Cir. 2004) (modifying an

award assuming certain durations of employment where the assumptions were

“supported by neither [the employer’s] past history as an employer, nor [the relevant]

workers’ past employment histories”). This is not a case in which Nassar’s contract

had been renewed time and time again. Cf. Larch v. Mansfield Mun. Elec. Dept.,

272 F.3d 63, 73-75 (1st Cir. 2001). Rather, this is a case from a generally at-will

employment state, see Crawford Cnty. v. Jones, 232 S.W.3d 433, 438 (Ark. 2006),

in which Nassar’s contract had been renewed only once and in which board members

were openly hostile to Nassar. Without some evidence that the contract would have

been renewed but for the denial of due process, the evidence of post-contract damages

was irrelevant, see Fed. R. Evid. 104(b), and the front-pay award was improper,

whether consented to or not. We recognize that the Seventh Circuit has allowed a

defendant to consent implicitly to a jury award of front pay in a traditional

discrimination suit. See Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495,

500-01 (7th Cir. 2000). But in these specific circumstances, we think the partial

dissent expands consent on one issue too far into uncharted legal territory. The

school district and Jackson’s failure to object to irrelevant evidence did not also

approve the doubly novel idea that the jury could award front pay on a due-process

claim. 

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agreement with their attorneys and (2) that the award was based on improperly blockbilled records.

The school district and Jackson argue that in determining attorney’s fees, the

district court improperly awarded Nassar and Smith’s lead counsel $375 per hour,

rather than his usual rate of $250 per hour, solely because counsel worked on

contingency. See Newhouse, 110 F.3d at 644 (“[A]n enhancement above the lodestar

fee for contingency is not permitted.”). Though the school district and Jackson did

not raise the issue in the district court, they “could not anticipate” this outcome,

“which the district court introduced in its order.” United States v. Hurt, 676 F.3d 649,

652-53 (8th Cir. 2012). As such, they did not waive the issue. Id. But they are

wrong on the merits. The district court explicitly acknowledged that it could not

enhance the fee award solely because of a contingent fee agreement. Rather, it

explained that it enhanced the rate of Nassar and Smith’s lead counsel specifically

because of his experience and his “superior legal and advocacy skills” in the case. 

The district court thus did not abuse its discretion as the school district and Jackson

have argued.

The school district and Jackson also extrapolate from our general rule that

“[i]nadequate documentation may warrant a reduced fee.” H.J. Inc. v. Flygt Corp.,

925 F.2d 257, 260 (8th Cir. 1991). They contend that the court should have reduced

the award because the time entries of Nassar and Smith’s attorneys were “blockbilled, preventing meaningful analysis of the time spent on each discrete task.” As

our sister circuit has noted, the district court’s “superior understanding of the

litigation” cautions against “appellate review of minutia[e].” Farfaras v. Citizens

Bank and Trust of Chi., 433 F.3d 558, 569 (7th Cir. 2006) (quoting Spellan v. Bd. of

Educ. for Dist. 111, 59 F.3d 642, 645 (7th Cir. 1995)). We again find no abuse of

discretion.

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Nonetheless, we note that “the results obtained” is one factor relevant to a

court’s calculation of fees. See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). 

Thus, though we affirm the fee award with respect to the arguments raised here, we

vacate and remand for reconsideration in light of our holding vacating Nassar’s

$340,000 award. See Quigley v. Winter, 598 F.3d 938, 958 n.7 (8th Cir. 2010)

(noting “that the usual procedure isto remand any further consideration of an attorney

fee award to the district court”). We leave alteration of the fee, if any, to the sound

discretion of the district court.

III.

For the reasons discussed, we affirm in part and vacate in part, remanding for

further proceedings not inconsistent with this opinion. 

BYE, Circuit Judge, concurring in part and dissenting in part.

I disagree the school district and Jackson did not waive their ability to

challenge the $340,000 award to Nassar on his due-process claim. Instead, I believe

the jury properly considered the evidence presented within the provided jury

instructions. I therefore respectfully dissent from Part II.B. of the decision reversing

the district court. I concur in all other aspects of the majority opinion.

First, the school district and Jackson allowed Dr. Ralph Scott to testify about

Nassar’s future income and fringe benefit losses without an appropriate objection or

limitation. Although counsel for the school district and Jackson posed an objection,

the objection pertained to Dr. Scott’s offering of a narrative rather than Dr. Scott’s

ability to offer testimony regarding future losses. Instead, counsel indicated he

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realized Dr. Scott was an expert and was “allowed to give his testimony.”

Appellants’s App. 233. “Without an objection and a proper request for relief, [a]

matter is waived and will receive no consideration on appeal absent plain error.” 

McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1407 (8th Cir.

1994) (internal quotation marks and citation omitted). The total amount to which Dr.

Scott testified, including both past and future income and fringe benefits losses,

exceeded $340,000, and neither the school district nor Jackson presented any

evidence contradicting these amounts.

Further, even though front pay, which Nassar argues issynonymous with future

losses, may be awarded by the district court in its discretion, see Mathieu v. Gopher

News Co., 273 F.3d 769, 778 (8th Cir. 2001), the school district and Jackson

consented to its consideration by the jury by failing to object to Dr. Scott’s testimony. 

See Whiting v. Jackson State Univ., 616 F.2d 116, 123 (5th Cir. 1980) (“By failing

to object, the parties agreed that the jury’s verdict on the claims for equitable relief

was to have the same effect as if a right to a jury trial existed.”); see also Broadnax

v. City of New Haven, 415 F.3d 265, 272 (2d Cir. 2005) (“[W]hen a party demands

a jury consideration of lost wages . . . and the party’s opponent fails to object,

[Federal Rule of Civil Procedure] 39(c) permits the district court to submit the lost

wagesissue for a non-advisory jury determination.”); Pals v. Schepel Buick & GMC

Truck, Inc., 220 F.3d 495, 501 (7th Cir. 2000) (finding the parties consented to the

jury deciding front pay because neither party objected, resulting in jury consideration

of the issue under Rule 39(c) and an implied consent to amend the pleadings under

Federal Rule of Civil Procedure 15(b)); Bereda v. Pickering Creek Indus. Park, Inc.,

865 F.2d 49, 52 (3d Cir. 1989) (holding that where both parties “requested a jury trial

and the subject of an advisory jury was never mentioned at any time during the

proceedings, [the plaintiff] and [the defendant] must be deemed to have consented to

a trial by a nonadvisory jury under Rule 39(c)”). Additionally, “having juries

calculate lost wages requires no special competence or authority belonging solely to

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the court.” Broadnax, 415 F.3d at 272. I further “find sensible the proposition that

where a party requests a jury determination of an issue requiring no special

competence or authority belonging solely to the court, and the other party or parties

fail to object, such silence may be deemed ‘consent’ under Rule 39(c).” Id. 

Accordingly, contrary to the majority’s determination, ante at 9, mutual implied

consent by Nassar, the school district, and Jackson supports the jury’s authority to

resolve the issue of front pay which would normally be decided by the court. See

Pals, 220 F.3d at 501. The school district and Jackson also failed to make any

arguments or cite case law standing for the proposition that front pay is not a remedy

available to Nassar.

The jury, thereafter, contrary to the school district and Jackson’s argument,

properly applied the jury instructionsto the evidence which was presented. See CSX

Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009) (“In those cases, as in all cases,

juries are presumed to follow the court’s instructions.”). Although the majority cites

to an instruction the district court provided to the jury, the language cited is only an

excerpt of the instruction. See ante at 7. Instead, the instruction broadly states the

jury must award Nassar an amount of money for any damages he sustained as a result

of the constitutional violation. Appellants’s App. 94. It then provides the award

should merely put Nassar in no better position than he would have had if the school

district had provided him a hearing. Id. Absent is any limitation as to the specific

kinds of damages the jury may award or the time period over which those damages

may be awarded. Although the instruction next provides an element of damages to 5

consider, it does not direct the jury to make this element its sole consideration for

Although the instruction later provided a time limitation to the amount of 5

wages and fringe benefits which the jury could have awarded, the jury found the

school district failed to carry its burden to make the time limitation applicable. See

Appellants’s App. 78, 94-95. The school district and Jackson do not appeal this

finding.

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damages. Id. Additionally, the element itself provides a broader consideration than

the school district and Jackson argue, directing the jury to consider the wages and

fringe benefits which Nassar would have earned in his employment with the school

district instead of those wages and fringe benefits which remained based on his

contract. Id.

The plain language of the instruction as a whole therefore refutes the school

district and Jackson’s argument that “the measure of [Nassar’s] damages was the

amount of wages and fringe benefits remaining on his contract at the time of his

termination.” Appellants’s Br. 37. A reasonable jury could read this instruction and

conclude Nassar’s damages award extended beyond the wages and fringe benefits

remaining under the contract. If the school district and Nassar believed damages

should have been awarded on this narrow basis, an objection to the instruction was

warranted. Because they failed to object, they waived their ability to now argue the

jury improperly applied the jury instructions on this basis. See Niemiec v. Union Pac.

R.R. Co., 449 F.3d 854, 857-58 (8th Cir. 2006) (“A party’s failure to object to jury

instructions results in a waiver of that objection, absent a showing of plain error.”). 

I further conclude there was no plain error in this case. See id. (finding plain error,

“especially in the civil context . . . must result in a miscarriage of justice in order to

compel reversal”) (internal quotation marks and citation omitted).

For these reasons, I would find the school district and Jackson waived their

ability to challenge the $340,000 award and would affirm.

______________________________

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