The HONORABLE CHARLES B. KORNMANN, United States District 1

Judge for the District of South Dakota, sitting by designation.

 The HONORABLE JEAN C. HAMILTON, Chief United States 2

District Judge for the Eastern District of Missouri.

 

No. 95-3729

No. 96-1337

 

Robert Kehoe, *

 *

Plaintiff - Appellee, *

 * Appeal from the United States

v. * District Court for the Eastern

 * District of Missouri.

Anheuser-Busch, Inc., *

 *

Defendant - Appellant.*

 

 Submitted: June 12, 1996

 Filed: September 25, 1996

 

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge,

and KORNMANN, District Judge. 1

 

FLOYD R. GIBSON, Circuit Judge.

Following a five-day trial, a jury found that Anheuser-Busch, Inc.

("Anheuser") violated the Age Discrimination in Employment Act ("ADEA"),

29 U.S.C. §§ 621-634 (1994), and the Missouri Human Rights Act ("MHRA"),

Mo. Ann. Stat. §§ 213.010-.137 (Vernon 1983 & Supp. 1996), when it failed

to transfer Robert Kehoe to an open position within the company. Anheuser

now appeals the district court's denial of its motion for judgment as a

2

matter of law or, in the alternative, for a new trial. In addition,

Anheuser challenges the amount of interim front pay awarded by the district
 In the course of this litigation, the parties have expended 3

a considerable amount of time quarreling about Kehoe's exact job

title. It appears that Anheuser's own internal memoranda have,

in large measure, fomented this dispute. Although Anheuser

originally employed Kehoe as an assistant sports promotion

manager, throughout his tenure with the corporation some company

documents referred to him as a sports promotion analyst, and

still others identified him as a sports promotion administrator. 

Moreover, Kehoe's business card contained the description "sports

promotion assistant," and evidence introduced at trial suggests

that other sports promotion coordinators considered Kehoe to be a

member of their rank. According to Kehoe, his supervisors never

informed him of any change in his job title.

This confusion might be reflective of the fact that the SMG

is a relatively new organization within Anheuser that has found

it expedient to experiment with sundry organizational structures

during its first years of existence. Indeed, other SMG employees

who testified at trial had difficulty accurately identifying the

exact positions they had previously occupied within the group. 

Under these circumstances, in particular, we believe that a

person's job title pales in importance to the actual duties

performed by the individual on a day to day basis. Thus, for

ease of discussion, we characterize Kehoe as a sports promotion

coordinator. To the extent that Kehoe's responsibilities

differed in relevant degree from those of his peers, we take the

dissimilarities into account when resolving the merits of this

appeal.

2

court to Kehoe. We affirm.

I. BACKGROUND

In 1983, Anheuser hired Kehoe, who at the time was fifty-five years

old, as a sports promotion coordinator within the company's Sports

Marketing Group ("SMG"). The SMG is a division of Anheuser that evaluates 3

which segments of the public are interested in certain sports, determines

whether the relevant portion of the public includes likely consumers of

Anheuser beer, and uses interest in potentially favorable sports as a

marketing tool. Simply put, sports marketing involves selling a product

by widely publicizing its brand name before likely consumers.

Sports promotion coordinators are responsible for devising
 In utilizing the SPEM, the coordinator first determines the 4

number of people exposed to a promotion, both through actual

attendance and via media publicity. By comparing this figure to

the resources allotted to the event, the coordinator ascertains

the cost to Anheuser for every one thousand "impressions." If a

certain sport consistently yields a relatively high cost per

thousand impressions, the SMG might discontinue funding for that

sports property.

 In 1984, Joseph Castellano, who was at that time director 5

of the SMG, assigned another sports property, fishing, to Kehoe

in an effort to help him obtain the expertise necessary to

perform other types of sports promotions. After three months,

Kehoe decided, based upon the emphasis placed on the BSC by the

upper echelon of Anheuser's management, that he would not be able

to devote sufficient time to fishing promotions. Kehoe thus

successfully requested to be relieved of fishing duties, and he

never again

received a promotional assignment unrelated to the BSC.

3

promotions to be implemented in conjunction with particular sports. Each

coordinator is charged with developing and administering campaigns for the

different sports, known as "sports properties," assigned to him. In most

cases, the coordinator also attends any promotional affairs and applies the

Sports Promotion Evaluation Module ("SPEM") to assess the relative cost and

benefit of the event to Anheuser. The sports properties allocated to an 4

individual coordinator can, for a variety of reasons, vary from time to

time.

Unlike other sports promotion coordinators, who typically oversee

several different sports properties at any given time, Kehoe's primary work

responsibilities while in the SMG pertained to the management and operation

of the Busch Soccer Club ("BSC"). The club provided Anheuser an

opportunity to show community good will in the St. Louis, Missouri area by

sponsoring a number of youth soccer teams under the BSC name. Anheuser's

initial involvement with the BSC was spearheaded by Denny Long, the

president of Anheuser and an avid soccer enthusiast. In fact, trial

testimony indicates that Long's passion for soccer and his desire to boost

the sport's popularity influenced the SMG's decision to develop a sports

promotion coordinator position exclusively for the BSC. To 5
4

be sure, the fact that the SMG, rather than another division of Anheuser,

assumed control over BSC activities evidences a motivation for the

brewery's association with the club detached from altruistic notions or a

desire to pacify the company's chief executive: It furnished Anheuser an

opportunity to market beer. 

Until 1986, Anheuser directly paid the expenses of the teams

sponsored by the BSC. In that year, though, Anheuser organized the BSC as

an independent nonprofit corporation; from that point on, Anheuser entered

into an annual sponsorship agreement with the club, and the fee due under

that agreement was paid to the BSC from the SMG sports promotional budget.

After its incorporation, the BSC's board of directors included both

employees and nonemployees of Anheuser.

Although Kehoe was, of course, employed by Anheuser, the SMG

considered him to be a "loaned executive" to the BSC. Thus, in addition

to his formal position with the brewery, he also held miscellaneous titles

in his capacity as a BSC official. From 1983 to 1986, Kehoe served as

president of the BSC, and his duties entailed the supervision and

administration of all club activity. In June of 1986, the SMG hired Bob

Brunette, who is several months older than Kehoe, as BSC's executive

director. Brunette at that time became Kehoe's supervisor, and Kehoe's

title was changed to director of coaching. There was some overlap between

the two positions occupied by Kehoe and Brunette, and it seems fair to say

that Brunette rarely made any major decisions without consulting Kehoe.

Nonetheless, Brunette was ultimately responsible for the daily

administration of the BSC, which included the obligation to develop,

supervise, control, and monitor the club's budget. Kehoe's main duties

were selecting all BSC coaches, supervising and evaluating the coaches,

assisting BSC coaches with recruiting and practices, attending practices

and games, and arranging travel for
 The directive from Anheuser's senior management only 6

required Lamping to reduce the SMG's promotional budget, and

Kehoe's salary was not considered a promotional expense. Still,

Hudson and Lamping claim that they eliminated Kehoe's position as

part of their continuing obligation to refrain from "spend[ing]

company resources in an irresponsible manner."

5

the teams. In addition, the SMG required Kehoe, like other sports

promotion coordinators, to regularly report to an SMG manager. Kehoe's

superiors readily acknowledge that he successfully performed BSC tasks, and

it is largely uncontroverted that he had a good work ethic, worked long

hours, and was well-liked by his colleagues.

In May of 1989, Mark Lamping became director of the SMG. Shortly

after he acceded to this office, Anheuser executives instructed Lamping to

reduce the SMG promotional budget. At that time, Bruce Hudson, who had

supervised Kehoe for a brief period during 1986, was the SMG manager to

whom Kehoe reported and who oversaw the direction of the BSC. By late

summer of 1989, Hudson and Lamping had agreed to conserve resources by

discontinuing funding to the BSC and eliminating Kehoe's position with

Anheuser. On December 6, 1989, the brewery informed Kehoe that his

6

employment was to be terminated, and his last day of work with the company

was March 31, 1990. Kehoe, who was the only SMG employee fired as a result

of the budget cuts, was then sixty-one years old and was earning $43,344.00

per year.

In approximately late July of 1989, contemporaneous with Lamping's

preparation of the SMG's 1990 budget, Steve Sampson, another sports

promotion coordinator, announced his resignation. Hudson suggested that

the vacancy be filled by Mary Katherine Casso, a twenty-three year old

psychology graduate who had worked as a summer intern with the SMG.

Lamping concurred in Hudson's recommendation and extended an offer to Casso

on September 26, 1989; she accepted and began working for Anheuser in

October. 
6

Kehoe had not yet been notified that he was to be fired and did not apply

for the open position; neither Hudson nor Lamping considered him for the

post.

In early 1990, Kehoe applied for the newly created job of director

of administration for the BSC. Hudson, a member of the BSC's board of

directors, encouraged Brunette, the BSC's retired executive director, to

consider the part-time spot. Brunette refused, however, and the board

ultimately decided to hire Bob Albus at a salary of $12,000 per year.

Three of the six board members who voted on the issue were not employees

of Anheuser.

Kehoe subsequently filed suit against Anheuser in the United States

District Court for the Eastern District of Missouri, alleging that the

company had violated the ADEA and the MHRA by discriminating against him

on the basis of his age. The district court initially granted summary

judgment in Anheuser's favor, but this Court reversed in Kehoe v. AnheuserBusch, Inc., 995 F.2d 117 (8th Cir. 1993). In that proceeding, we viewed

the appeal as a reduction in force case and determined that Kehoe had met

his prima facie burden of showing discriminatory discharge due to age. We

also decided that Kehoe's evidence was sufficient to create a jury question

as to whether Anheuser's stated legitimate, nondiscriminatory reasons for

his discharge were pretextual.

On remand, the case proceeded to trial and the court submitted the

following two issues to the jury: 1) whether Anheuser unlawfully

discriminated against Kehoe when it eliminated his position; and 2) whether

the company committed unlawful age discrimination by failing to transfer

Kehoe to an open sports promotion coordinator position. The jury found for

Anheuser on the first question, but returned a verdict for Kehoe on the

failure to transfer claim. Nonetheless, though it was undisputed that

Kehoe would have earned the equivalent of $251,590.53 in salary and

benefits had he retained a position with Anheuser, the jury awarded
 In Number 96-1337, Anheuser also appeals the district 7

court's award of attorneys' fees to Kehoe. The parties, however,

have stipulated that our ruling on the underlying judgment will

be dispositive of that appeal.

7

only $60,000 in damages. The court denied Anheuser's motion for judgment

as a matter of law or, alternatively, for a new trial and instead entered

judgment in accordance with the verdict. After a post-trial hearing, the

court additionally ordered Anheuser to reinstate Kehoe to the first open

position as a sports promotion manager. Because no such jobs in the St.

Louis area were then available, the court in the interim awarded front pay

to Kehoe. The court stressed that Kehoe has a continuing duty to mitigate

and specified that the front pay is to be reduced by the amount that he

actually earns during the relevant period.

Anheuser presently appeals the district court's judgment. The

company insists that the trial judge committed error in denying its motion

for judgment as a matter of law, in instructing the jury, and in fashioning

the front pay award. We consider each of these allegations seriatim.

7

II. DISCUSSION

A. Anheuser's Motion for Judgment as a Matter of Law

Our quite limited task when reviewing a district court's denial of

a motion for judgment as a matter of law is to adjudge whether there is

sufficient evidence to support the jury's verdict. Nelson v. Boatmen's

Bancshares, Inc., 26 F.3d 796, 800 (8th Cir. 1994). To make this

assessment, we must: (1) consider the evidence in the light most favorable

to Kehoe; (2) assume that all conflicts in the evidence were resolved in

favor of Kehoe; (3) assume as proved all facts that Kehoe's evidence tended

to prove; and (4) give Kehoe the benefit of all favorable inferences that

may reasonably be drawn from the facts. Id. "Judgment as a matter of
 Courts employ the same analysis under both the ADEA and the 8

MHRA. See Gillming v. Simmons Indus., No. 95-3466, 1996 WL

438693, at *6 n.2 (8th Cir. Aug. 6, 1996); McMullin v. McRaven,

882 S.W.2d 772, 774 (Mo. Ct. App. 1994).

8

law is appropriate only when all of the evidence points in one direction

and is susceptible to no reasonable inference that would sustain the

position of the nonmoving party." Tidwell v. Meyer's Bakeries, Inc., No.

95-3506, 1996 WL 471348, at *4 (8th Cir. Aug. 21, 1996). "We must affirm

a denial of a motion for judgment as a matter of law if reasonable persons

could differ as to the conclusions to be drawn from the evidence." Parrish

v. Immanuel Medical Ctr., No. 95-3514, 1996 WL 455555, at *3 (8th Cir. Aug.

14, 1996).

1. Unlawful Discrimination

Anheuser first argues that it is entitled to judgment as a matter of

law because Kehoe failed in various respects to meet the minimum

evidentiary burdens required of him at trial. In support of this claim,

however, Anheuser improperly focuses upon the alleged weakness of Kehoe's

proof at various stages of the familiar McDonnell Douglas framework

applicable in this disparate treatment case. See McDonnell Douglas Corp. 8

v. Green, 411 U.S. 792, 800-04 (1973) (setting forth the "order and

allocation of proof" in a disparate treatment case under Title VII); Krenik

v. County of Le Seuer, 47 F.3d 953, 957 (8th Cir. 1995) (observing that the

McDonnell Douglas framework applies to cases under the ADEA). Anheuser's

reasoning, though, ignores the well-settled law of this circuit, as stated

in Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir. 1990). In that

case, we emphasized that, on an appeal following a full trial in an

employment discrimination case, "[t]his court will not assess the adequacy

of a party's showing at any particular stage of the McDonnell Douglas

analysis." Id. Rather, "[o]nce a finding of discrimination has been made

and that judgment is being considered on appeal, the McDonnell Douglas
9

presumptions fade away, and the appellate court should simply study the

record with a view to determining whether the evidence is sufficient to

support whatever finding was made at trial." Id. (quotation omitted).

Once again, then, we find it necessary to remind the litigants that our

present obligation is merely to concentrate our efforts "upon the ultimate

factual issue of whether the employer intentionally discriminated against

the employee." Id.; see also United States Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 715 (1983) ("Where the defendant has done

everything that would be required of him if the plaintiff had properly made

out a prima facie case, whether the plaintiff really did so is no longer

relevant."); Parrish, 1996 WL 455555, at *8 n.2 ("[W]e decline to deviate

from our task on appeal of determining whether the evidence is sufficient

to support the jury's finding of unlawful discrimination.").

This is not to say that we will never find it necessary, in an appeal

from a district court's denial of a motion for judgment as a matter of law,

to consider the potency of the plaintiff's prima facie case. See, e.g.,

Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1110 (8th Cir.)

(refusing to upset jury's verdict where plaintiff had established prima

facie case and had presented sufficient evidence of pretext), cert. denied,

115 S. Ct. 355 (1994). In Gaworski, we undertook an analysis of the

Supreme Court's opinion in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502

(1993). Gaworski, 17 F.3d at 1108-09. The Court in Hicks explained that,

while rejection of the employer's proffered nondiscriminatory reasons does

not compel a verdict for the plaintiff, "[t]he factfinder's disbelief of

the reasons put forward by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may, together with the elements

of the prima facie case, suffice to show intentional discrimination."

Hicks, 509 U.S. at 511. Applying this axiom in Gaworski, we held:

[I]f (1) the elements of a prima facie case are present,
10

and (2) there exists sufficient evidence for a reasonable jury

to reject the defendant's proffered reasons for its actions,

then the evidence is sufficient to allow the jury to determine

whether intentional discrimination has occurred, and we are

without power to reverse a jury's finding.

Gaworski, 17 F.3d at 1109. 

Despite the somewhat expansive tenor of this pronouncement, decisions

subsequent to Gaworski have been careful to emphasize that the Supreme

Court in Hicks mentioned, even where the employee has refuted the

employer's proffered reasons for the adverse employment action, the

plaintiff cannot prevail unless he has introduced "evidence that will

'suffice to show intentional discrimination.'" Rothmeier v. Investment

Advisers, Inc., 85 F.3d 1328, 1335 (8th Cir. 1996) (quoting Hicks, 509 U.S.

at 511). As such, we have concluded that the relevant holding in Gaworski,

as set out above, applies only in the presumably rare scenario in which the

plaintiff's evidence of pretext serves "double duty." See Boatmen's

Bancshares, 26 F.3d at 801. That is, where the proof of pretext "serve[s]

the additional purpose of permitting an inference that [unlawful]

discrimination was a motivating factor in a plaintiff's termination." Id.

In all other cases, the plaintiff "must do more than simply discredit an

employer's nondiscriminatory explanation; he must also present evidence

capable of proving that the real reason for [the adverse employment action]

was discrimination based on [a prohibited criterion]." Id.

For our immediate purposes, then, we have returned full circle to the

standard of review embraced by Morgan. When a party challenges the

district court's denial of a motion for judgment as a matter of law, we

will examine the elements of the prima facie case only in the infrequent

circumstance where the plaintiff has shown no independent proof of

intentional discrimination and has instead singularly relied upon his

evidence of pretext to serve "double duty." In the vast majority of

appeals, such as the one
11

now before us, we need not be distracted by the stages of the McDonnell

Douglas framework, and we will continue to focus solely on the "central

question" of "whether there was sufficient evidence to decide whether the

defendant[] intentionally discriminated against the plaintiff[]." Winbush

v. Iowa, 66 F.3d 1471, 1480 (8th Cir. 1995) (Opinion by Judge Lay).

Turning, at last, to the merits of this issue, and viewing the facts

in a light most favorable to Kehoe, we decide that he presented sufficient

evidence to support the jury's finding of unlawful discrimination. First

of all, there was ample evidence to allow the factfinder to infer that

Anheuser's proffered nondiscriminatory reasons were a pretext for age

discrimination. The company asserted that it did not transfer Kehoe to the

open sports promotion coordinator position because he was not qualified to

perform that job. In particular, Bruce Hudson and Mark Lamping, Kehoe's

superiors, maintained that Kehoe, who has a college degree in physical

education, did not possess the analytical or interpersonal skills required

by the position. Furthermore, the supervisors alleged that they held

severe misgivings about Kehoe's ability to effectively manage a sports

promotional budget.

Kehoe countered these contentions with testimony by two former SMG

employees, one of whom had supervised Kehoe for a period, indicating that

Kehoe was well-liked by his peers and satisfactorily performed a job at the

BSC that was not dissimilar to the open sports promotion coordinator

position. These witnesses further declared that Kehoe had the competence

to conduct the analytical component of the vocation, which included

application of the SPEM formula. Kehoe also pointed to the fact that he

had, without complaint, assisted in the efficient administration of the

BSC's rather large budget, and through frugal spending over the years had

even managed to accumulate a $100,000 surplus. In fact, Hudson himself

admitted that, with training, Kehoe could capably perform most, if not all,

of the functions demanded of a typical
 After Hudson made this concession, Anheuser was reduced to 9

arguing that, although Kehoe might have been able to perform the

"discrete parts" of a sports promotion coordinator position, he

was incapable of competently synthesizing all of his skills to

engage in the "big picture" of "overall marketing."

12

sports promotion coordinator. Moreover, though Anheuser implies that

9

Kehoe did not have the educational background or experience to succeed in

a marketing career, the person ultimately hired by the SMG had received a

degree in psychology and only enjoyed the experience that a summer

internship with Anheuser had provided.

In addition to these facts discrediting Anheuser's proffered reasons

for the failure to transfer, Kehoe also introduced other evidence "that

would allow a jury reasonably to infer that the real reason for the adverse

employment action was intentional discrimination." Rothmeier, 85 F.3d at

1336. Significantly, Kehoe demonstrated that he was the only person within

the SMG to lose his job as a result of the cuts in the promotional budget,

and he showed that younger sports promotion coordinators had retained their

positions even after the SMG had discontinued funding for certain of their

sports properties. Most telling, though, was the testimony regarding

assorted statements attributed to Hudson. Credible evidence indicated that

Hudson, when discussing the attendance of Kehoe and Brunette at yearly

marketing meetings, commented, "What are these guys going to do? Sit in

back, fall asleep?" Hudson also reportedly referred to the two older men

as "moochers" and "leeches," stated that they were not part of the "group,"

and intimated that the budget cuts gave him an opportunity to "get rid of"

Kehoe. One witness testified that Hudson desired to relocate Kehoe's

office away from Anheuser's corporate premises in order to "get him out of

the way." Additionally, evidence suggested that Hudson called Kehoe an

"old fart" and described the BSC as a "retirement center" where he had been

"put out to pasture." Finally, with regard to the distribution of

promotional
13

assignments, Hudson was said to have lamented, "What am I going to give

[Kehoe]? Senior golf?"

Anheuser propounds that these statements were mere "stray remarks"

unrelated to the transfer decision at issue, but we cannot agree. Hudson

was Kehoe's immediate supervisor, and he was also the person who made the

recommendation to Lamping about who should fill the vacant position.

Significantly, the person whom Hudson initially endorsed for the job, Mary

Catherine Casso, ended up receiving the post. Though Lamping, who was one

step above Hudson in the SMG's management hierarchy, stated that he

regarded Kehoe as unqualified for the position, he admitted that he

actually had very little contact with Kehoe and relied on Hudson's

estimation of the employee's abilities. Thus, far from being "stray

remarks," we conclude that Hudson's comments exemplify "statements by

persons involved in the decisionmaking process that may be viewed as

directly reflecting the alleged discriminatory attitude of an extent

sufficient to permit the jury to infer that that attitude was more likely

than not a motivating factor in the employer's decision." Nelson v. J.C.

Penney Co., 75 F.3d 343, 345 (8th Cir. 1996) (quotations and alteration

omitted), petition for cert. filed, 64 U.S.L.W. 3795 (U.S. May 20, 1996)

(No. 95-1878).

Because Kehoe produced sufficient evidence to support the jury's

finding of age discrimination, the district court correctly refused to

grant Anheuser's motion for judgment as a matter of law.

2. Irrational Verdict

The parties agreed that, had Anheuser transferred Kehoe to the open

position, between the time of his discharge and the date of his trial he

would have earned $251,590.53 in salary and benefits. The jury, however,

only awarded Kehoe $60,000 in back pay. Anheuser now claims that this

disparity reveals the jury compensated Kehoe for his failure to procure

employment as the
 To the extent that Anheuser intends to argue that the 10

grounds asserted in support of its motion for judgment as a

matter of law would provide a basis for granting a new trial, we

decide that the district court did not abuse its discretion when

it rejected these allegations and declined to order a new trial. 

See Boatmen's Bancshares, 26 F.3d at 800 (recounting that we

review the

denial of a motion for a new trial under the abuse of discretion

standard).

14

BSC's director of administration, an occupation that would have paid

roughly $60,000 during the same interval. Therefore, as the BSC is a

separate corporate entity for whose acts the brewery cannot legally be held

accountable, Anheuser alleges that it is entitled to judgment as a matter

of law.

This argument need not occupy us for long. We recently reiterated:

Given correct instruction on the law and no clear disregard for

that instruction on the face of the verdict, a jury verdict

must remain immune from questioning by the district court and

from speculation by an appellate court that the verdict may be

based on a misunderstanding of the law.

T.H.S. Northstar Assocs. v. W.R. Grace & Co., 66 F.3d 173, 178 (8th Cir.

1995) (quotation and alteration omitted). Stated another way, "mere

speculation that a jury verdict may have been based on the jury's own

misunderstanding of the law, even though properly instructed, is an

insufficient basis on which to upset a jury verdict." Gander v. FMC Corp.,

892 F.2d 1373, 1379 (8th Cir. 1990), cert. denied, 498 U.S. 878 (1990).

In the case now before us, the district court correctly advised the jury

that Anheuser would be liable on the pertinent cause of action only if the

company, for a statutorily prohibited reason, "did not transfer Plaintiff

to one or more open positions in the Sports Marketing Group." Nowhere do

the instructions even remotely insinuate that Anheuser could be held

accountable for the BSC's rejection of Kehoe's application. The properly

instructed jury returned an internally consistent verdict; thus, Anheuser

is not entitled to judgment as a matter of law. See W.R. Grace, 66 F.3d 10

at 178.
15

 B. The Jury Instructions

Anheuser complains that the district court failed to instruct the

jury that Kehoe could not prevail on the failure to transfer claim unless

he proved he applied for the open sports promotion coordinator position.

Also, the company avers that the instructions did not appropriately

describe the type of causation required under the ADEA. Anheuser submitted

objections on both of these points at the district court's charge

conference, but it failed to tender alternate instructions containing what

it considered to be a correct articulation of the law.

In order to properly preserve a claim of instructional error for

appellate review, a party is not only required to make a sufficiently

precise objection before the district court, see Jones Truck Lines, Inc.

v. Full Serv. Leasing Corp., 83 F.3d 253, 256 (8th Cir. 1996), but it must

also propose an alternate instruction, see Grogan V. Garner, 806 F.2d 829,

837 n.10 (8th Cir. 1986). Otherwise, the claim is waived, and we will

reverse only if the district court's instructions constitute plain error.

See Jones Truck Lines, 83 F.3d at 256-257. Consequently, because Anheuser

did not offer alternate instructions to the district court, reversal will

be appropriate here only if the asserted error "seriously affected the

fairness, integrity, or public reputation of the judicial proceedings."

Id. at 257 (quotation omitted).

1. The application requirement

 Anheuser insists that the district court committed reversible error

when it neglected to instruct the jury on an important
 To establish a prima facie case on a failure to transfer 11

claim under the ADEA, the plaintiff must ordinarily show: 1) he

is a member of a protected class; 2) he applied for and was

denied a position for which he was qualified; and 3) the position

was given to a significantly younger person. See O'Connor v.

Consolidated Coin Caterers Corp., 116 S. Ct. 1307, 1310 (1996)

(holding that, for purposes of the ADEA, a plaintiff establishes

a prima facie case by showing, inter alia, that his replacement

is significantly younger); Lidge-Myrtil v. Deere & Co., 49 F.3d

1308, 1310 (8th Cir. 1995) (listing prima facie elements in

similar failure to promote context).

 We note in passing that other courts of appeals have 12

indicated that district courts should refrain from instructing on

the elements of the prima facie case. See, e.g., Woodhouse v.

Magnolia Hosp., No. 95-60697, 1996 WL 444257, at *7 (5th Cir.

Aug. 6, 1996) ("[I]t is improper to instruct the jury on the

elements of the prima facie case."); Gehring v. Case Corp., 43

F.3d 340, 343 (7th Cir. 1994) ("Once the judge [in pretrial

proceedings] finds that the plaintiff has made the minimum

necessary demonstration (the 'prima facie case') and that the

defendant has produced an age-neutral explanation, the burdenshifting apparatus has served its purpose, and the only remaining

question--the only question the jury need answer--is whether the

plaintiff is a victim of intentional discrimination."), cert.

denied, 115 S. Ct. 2612 (1995).

16

element of Kehoe's prima facie case. Namely, the company contends that 11

the court should have instructed the jury that the employee was obliged to

apply for the open position. While Anheuser is correct that the

application requirement is normally considered a component of the

plaintiff's prima facie case, we cannot conclude that the district court

committed plain error.

As we have already discussed, this Court has expressly held that an

employee's strong prima facie showing, acting in concert with evidence of

pretext sufficient to raise an inference of discrimination, is an adequate

foundation for a plaintiff's verdict. See Rothmeier, 85 F.3d at 1336-37.

Accordingly, the district courts in this circuit are constrained to

instruct juries on the elements of the prima facie case. Nonetheless,

12

while district judges should, as always, strive to accurately advise the

jurors of the law, an otherwise unremarkable error in the
 The Supreme Court has observed that "[t]he burden of 13

establishing a prima facie case of disparate treatment is not

onerous," Texas Dep't of Community Affairs v. Burdine, 450 U.S.

248, 253 (1981), and the Court has emphasized that "the prima

facie proof required from [the plaintiff] is not necessarily

applicable in every respect to differing factual situations,"

McDonnell Douglas, 411 U.S. at 802 n.13. Hence, although it is

usually necessary for a plaintiff to show that he applied for an

available position, that element of the prima facie case will be

excused where he demonstrates that the employer "'had some reason

or duty to consider him for the post.'" Fowle v. C & C Cola, 868

F.2d 59, 68 (3d Cir. 1989) (quoting Carmichael v. Birmingham Saw

Works, 738 F.2d 1126, 1133 (11th Cir. 1984)); see also Chambers

v. Wynne Sch. Dist., 909 F.2d 1214, 1217 (8th Cir. 1990)

(discussing other situations in which formal application will be

excused).

In the case sub judice, Kehoe presented evidence tending to

show that his supervisors knew they were going to eliminate his

position at the same time that they were surveying candidates for

the available job as a sports promotion coordinator. Kehoe,

though, did not learn that he was going to be fired until after

the post had already been filled. Under these circumstances, we

would be inclined to hold, as a matter of law, that the

application requirement should be excused because Anheuser had a

reason or duty to consider Kehoe for the job. See Shannon v.

Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996) ("It would be

ironic--bizarre, in fact--if a victim of discrimination were

unable to vindicate her rights because she had the peculiar

misfortune of being discriminated against in a way that

necessarily prevented her from making her prima facie case."). 

17

instruction describing the prima facie case will diminish in significance

where the plaintiff has presented ample evidence to support the ultimate

finding of unlawful discrimination.

Here, Kehoe's evidence was sufficient to support the jury's

conclusion that Anheuser intentionally discriminated against him because

of his age. Thus, even assuming, without deciding, that the district

court's instruction was faulty, any error could not be considered plain. 13

It was within the jury's purview to find in Kehoe's favor on the ultimate

question of unlawful discrimination; it follows, then, that any flaw in the

instruction addressing the prima facie case could not have "seriously

affected the fairness, integrity, or public reputation of the judicial
18

proceedings." 
19

Jones Truck Lines, 83 F.3d at 257 (quotation omitted).

2. Causation

Anheuser next urges us to remand for a new trial because the district

court's charge on causation was erroneous. Our independent review of the

instructions, however, discloses no error. Instruction seventeen informed

the jury that "an employer may lawfully choose not to hire or reassign an

employee to a specific position so long as age is not a reason for the

decision." Another instruction added that Anheuser was at liberty to fire

Kehoe "at any time for any reason whatsoever except that Plaintiff's

employment could not be terminated because of his age." We believe that

these statements and others satisfactorily conveyed to the jury that

Anheuser could be liable under the ADEA for disparate treatment only if

Kehoe's age "actually played a role in [Anheuser's decisionmaking] process

and had a determinative influence on the outcome." Hazen Paper Co. v.

Biggins, 507 U.S. 604, 610 (1993); see also Miller v. Cigna Corp., 47 F.3d

586, 592-98 (3d Cir. 1995) (en banc)(discussing the impact of recent

Supreme Court opinions on the causation requirement in disparate treatment

cases). The district court did not commit any error, much less plain

error, when instructing the jury on causation.

C. Front Pay

Finally, Anheuser argues that Kehoe has failed to mitigate his

damages. The company thus maintains that the district court should have

reduced the interim front pay award by the amount Kehoe could earn, instead

of by the amount he actually earns, during the relevant period. It is

axiomatic that "[t]he ADEA requires that plaintiffs use reasonable efforts

to obtain other employment after termination." Rhodes v. Guiberson Oil

Tools, 82 F.3d 615, 621 (5th Cir. 1996). The burden is upon the defendant

employer, though, to show that the plaintiff has not fulfilled this

mitigation
 We also affirm the district court's award of attorneys' 14

fees in Number 96-1337.

20

requirement. Smith v. World Ins. Co., 38 F.3d 1456, 1465 (8th Cir. 1994).

We will "review a finding that a plaintiff used reasonable efforts to

obtain other employment as a determination of fact, reversible only if

clearly erroneous." Rhodes, 82 F.3d at 621.

We have read the rather long transcript in this case, and we cannot

classify as clearly erroneous the district court's decision that Kehoe has

taken adequate measures to mitigate his damages. Therefore, we will not

disturb the interim front pay award.

III. CONCLUSION

There was sufficient evidence to support the jury's verdict, and the

district court properly refused to grant Anheuser's motion for judgment as

a matter of law. Because the company has failed to persuade us that any

other grounds warrant reversal, we affirm.14

AFFIRMED.

A true copy.

Attest:

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