___________ No. 95-3427

___________ Karen M. Karcher, *

Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Emerson Electric Co., * * Appellant. *

___________ Submitted: May 16, 1996 Filed: September 4, 1996

___________ Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

___________ WOLLMAN, Circuit Judge.
Emerson Electric Company (Emerson) a ppeals the jury verdict in favor of Karen Karcher on her sex and handicap discrimination claims. On appeal , Emerson raises numero us issues relating to the trial, including: 1) that it was entitled to judgment as a matter of law (JAML) on Karcher's failure

to-promote and retaliation claims; 2) that the district court erred i n failing to alter or a mend the judgment with respect to emotional distress damages and punitive damages; and 3) that it is entitled to a new tria l because of erroneous evidentiary rulings and erroneous jury instructions. We affirm in part and reverse in part.

I.

At th e time of trial, Karcher was an employee of Alco Control s (Al co), a division of Emerson. Karcher worked at Alco's St. Loui s facili ty, which manufactures refrigerator parts. The St. Louis plan t employs more than three hundred hourly workers, who are

### -2-

represented by District No. 9, International Association of Machinists , AFL-CIO (the union). At least one-third of the union employees are female

.
Until 1988, there were only three basic types of equipment in th e machine shop, the area of the plant where Karche r worked: manual bar feed
mac hines, manual automatic chucker machines, and numerically-controlle d machines. The machine shop used two types of employees, set-up workers an d operat ors. The set-up workers manually calibrated the machines t o manufacture a particular refrigerator part and were then responsible for mainta ining the machine so that it would produce consistently accurat e parts. After the machine was set up, the operators ran the machines b y feeding the raw materials into the machine, insp ecting the completed parts to determine if they met specifications, and making minor adjustments to the machine, if necessary.

In 1988, Emerson purchased two new computerized bar feed machine s called Miyanos and tw o new computerized automatic chucker machines called Pumas. Rather than r equiring manual setup as the old machines did, these
mac hines were set up by computer. Thus, where the adjustments in th e tooling had previously been made by hand, the se t-up person could now make these adjustments by simply pushing buttons on a computer.

Bec ause no plant employee knew how to program or set up the ne w machines, Emerson initially hired someone outside the company to perform these tasks and to te ach these skills to selected male Emerson employees. After Emerson install ed the new machines, union and company officials met to negotiate a job classification, wage rate, and selection process for th e
new set-up jobs. Although the parties dispute the results of this meeting , they agree that the new jobs were classified as "Group 6 general machine shop set-up" (Group 6 set-up positions).

### -3- This classification required the emp loyee holding the position to be able to set up any machine in the plant. No Emerson employee was capable of doing this, howeve r, so the parties were required to further negotiate the qualifications for the job. The collective bargaining agreement i n place at the time pro vided that new jobs should be filled "with seniority being the deciding factor, where skill, ability, and physical fitness of the employees' [sic] being considered are relatively equal." This rul e could not be applied in a straightforward manner to the Group 6 set-u p positions, however, because no employee had direct experience setting up the machines, and the parties disputed what indirect experience would be helpful in undertaking these new jobs.

Both Karcher and Emerson offered the testimony of witnesses who were presen t at this initial union-employer meeting. One of Karcher' s witnesses, Grady Scot t (Karcher's step-father), testified that it was his underst anding that the new positions would be awarded based solely o n seniority. Another o f Karcher's witnesses, Tom Bonzo, testified that the positions were to be awarded to the senior bidde r with at least six months experience in a machine shop. On the other hand, two of Emerson' s witnesses testified that Miyano setup would require prior set-up experienc e
on b ar feed equipment and that Puma setup would require prior set-u p experi ence on automatic chuckers. Emerson's witnesses also agreed tha t work ers with prior set-up experience on the old numerically-controlle d machines would be qualified to set up both Pumas and Miyanos. According to the se witnesses, the senior bidder with the appropriate set-u p experience would be awarded the job.

Karch er was hired by Emerson on March 19, 1976. From the time sh e was hired until the t ime of trial, she held a variety of jobs at Emerson, including assembler, manual automatic chucker machine operator, drill pres s operat or, bench lathe operator, welder, and tester. Her experienc e inc luded operating numerically controlled machines and inspecting an d finishing parts that had been machined.

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None of these jobs, however, involved set-up work.

On Septem

ber 11, 1978, Karcher became the only woman to work in the automa tic screw machine department. Although this position was no t primarily a set-up position, she began learning some set-up skills on an automatic screw machine while she held this job. On October 23, 1978, she
was removed from this job even though she was having no difficulty learnin g setup on the screw machine.
Karcher applied for two Group 6 set-up positions, one that was posted
on October 18, 1990, and another that was posted on February 4, 1992

. Karcher was near the top of seniority on the list of applicants for both of these positions. Ten Emerson employees, including Karcher, bid on the first position, with Karcher being the second most senior bidder. Both th e most seni or bidder and Karcher, as well as the next two senior bidders , were determined to be "not qualified" for the po sition. Bill Pearson, the fifth senior bidder got the job. Pearson had bar feed set-up experience on the turret lathe as well as trade schooling. The fourth senior bidder, Anna Ryan, was determined to be not qualified despite her set-up experienc e with another company. Karcher filed charges with the EEOC and the Missour i Commission on Human Rights with respect to the denial of this promotion. Nine emplo yees, including Karcher, bid on the second job. The senio r bidder, after being determined to be not qualified, withdrew his bid

. Karcher, the next senior, was again determined to be not qualified. A mal e employee was given the job.

Between 1988 and 1994, Emerson awarded twenty-six Miyano and Pum a set-up positions. All of these positions were awarded to men. Twenty-fiv e of the successful bidders had either set-up experience or experience on th e numerically-controlled machines. Grady Scott, however, was awarded a Grou p 6 set-up position without having

### Emerson asserted that Scott had set-up ex perience acquired in 1 

### the repair shop that he owned. Scott, himself, testified that he had no such experience.
-5- either ty pe of experience. Scott testified that Karcher was mor e 1 qual ified than he was because she had operated numerous machines an d equipment.

Karc her's husband, Jerry Karcher (Jerry) was also an Emerso n employee, working as a quality assurance supervisor. As part of his job, Jerry w as required to attend monthly supervisor's meetings. At thes e meetings, status reports were presented regarding pending workers ' compensation claims and grievances. During the time he held this job, his wife filed at least six workers' compensation claims after being injured
on the job in March of 1983. Thus, as part of his job, Jerry attende d meetings where his wife's claims were discussed.

In early 1990, Karcher applied for a position in the qualit y
assurance department. Had she been awarded the job, her husband would hav e been her direct supervisor. At that time, Jerry told his supervisors that
were his wife to be awarded the job, he would leave the company to avoid any conflict of interest. When Karcher was informed that her husband woul d be required to leave the company if she were awa rded the job, she withdrew her bid.

In early December of 1991, Karcher l earned that another Group 6 setup position would become available because Scott would be retiring because of ill health. Karcher then attempted to contact Richard Schul, Alco' s president, about the potential job opening. Sch ul refused to see Karcher, informing her that sh e needed to discuss the matter through the company's chain of c ommand. In response to Karcher's attempt to contact Schul , Jerry's supervisors, Vicki Taylor and Jim Wors, met with him on December 9, 1991, and informed him that they believed that a serious conflict

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of interest had developed and that he should begin looking for another job

. According to Jerry, Wors stated at this time that "since your wife ha s these lawsuits and ca ses pending against us, we feel that we are going to give you sixty days to find another job."
Although Jerry did not find another job within sixty days, he w as not terminated. He continued to work for Emerson un til July 1992, when he was offered a job at Cerro Copper Product Company. He accepted this position, which offered a higher salary but fewer benefits.
In January 1994, Emerson instituted a "safety pays" bingo game. The bingo jackpot startedat twenty-five dollars and increased one dollar for every day in which th ere was not a lost-time accident in the plant. Each employee who signed up for the game received a bingo sheet, and each day without a lost-time accident a number and letter were drawn in the typical bingo m anner. Any employee who had a lost-time accident on the job wa s disqual ified from playing the remainder of the game and the followin g round. The bingo sign-in sheet stated, "By signing my name below, I certify I have not ha d any work-related injuries during the previous game round." In a meeting which Karcher did not attend, Taylor and Wor s explained that an employee who suffered an on-the-job injury but did not lose work time as a r esult thereof would be permitted to play the game if the employee reported the injury to his supervisor.

In Jan uary 1994, Karcher visited a doctor for treatment of th e
recurre nce of a work injury that she had suffered on July 14, 1993, an d which she had reported to her supervisor at the time. On January 10, 1994 , Karcher filed a workers' compensation claim for this doctor visit. Karche r lost no work time in relation to this visit, and she did not report th e claim to her supervisor. On January 20, Karcher's supervisor presented th e bingo sign-in sheet

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for Karcher to sign. When Karcher declined to sign it, she was informed that participation in the game was mandatory. Karcher therefore signed th e form. The language explaining that an employee who suffered any work

related injury was no t permitted to sign the form was obscured by the top of the clipboard. Ka rcher was subsequently issued a disciplinary warning for falsification of company records for signing of the bingo form without reporting an injury to her supervisor. The noti ce warned that any further infractions could result in discharge. Karcher filed a grievance over thi s report, and it was ev entually removed from her file, although the warning remained in effect for most of the remainder of 1994.

On October 24, 1994, Karcher filed this complaint against Emerson , alleging discrimination on the basis of her sex and handicap, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e e t seq. and the Missouri Human Rights Act (MHRA), Mo. Rev. Stat § 213.111. She allegedfour incidents of discrimination: a) two incidents of failure to promote to Group 6 set-up positions based on her sex and b) two incidents of reta liation for her filing charges with the EEOC and the Missouri Commission o n Human Rights: threatening to fire her husband and forc ing him to leave the company and disciplining and threatening t o discharge her with respect to the bingo game.

The j ury returned a verdict for Karcher, awarding her $25,000 fo r los t wages and benefits, $150,000 for emotional pain and suffering, an d $350,000 in punitive damages. Emerson filed a motion for judgmen t notwithstanding the verdict, for a new trial, and to amend the judgment, which the district court denied.

II.

Emerson first claims that it was entitled to JAML on Karcher's claims of failure to promote. We review de novo a district court's

### In a dispar ate treatment employment discrimination case, the 2 

### plaintiff must first establish, by a preponderance of the ev idence, a prima facie case of discrimination. The burden of productio n then shifts to the defendant to set forth legitimate reasons fo r his actions. Finally, if the defendant carries this burden, th e pla intiff assumes the ultimate burden of persuading the trier o f fact that the defendant intentionally discriminated against th e plain tiff. Hicks v. St. Mary's Honor Ctr. , 509 U.S 502 (1993) ; Nelson v. Boatman's Bancshares, Inc. , 26 F.3d 796, 801 (8th Cir

. 1994). -8- denial of a motion for JAML, applying the same standard as the distric t court and overturning the verdict only if the evidence, viewed in the ligh t most fa vorable to the nonmoving party, is insufficient to support th e verdict. Nicks v. State , 67 F.3d 699, 704 (8th Cir. 1995).

Emerson attacks the verdict regarding Karcher's failure-to-promot e claim s on two fronts, first arguing that Karcher failed to establish a prima f acie case of sex discrimination, and then arguing that Karche r failed to prove that Emerson's proffered legitimate rationale for it s
ac tions was pretextual. We decline to re-engage in the three-ste p 2 analysis performed by the district court, but instead limit our review to the ultimate factual issue of whether Emerson intentionally discriminated on the basis of the K archer's sex. See Parrish v. Immanuel Medical Ctr. , No. 95-3514, slip op. at 8 n.2 (8th Cir. Aug. 14, 1996); Winbush v. State of Iowa b y Glenwood State Hosp. , 66 F.3d 1471, 1479-80 (8th Cir. 1995) ; Polacco v. Curators of the Univ. of Mo. , 37 F.3d 366, 369-70 (8th Cir

. 1994); Nelson v. Boatmen's Bancshares, Inc. , 26 F.3d 796, 800-01 (8th Cir. 1994).
To determine the merit of Karcher's discriminatory failure-to-p romote claims, the jury was required to accept either Emerson's explanation that it failed to promote Karcher because she was not qualified or Karcher' s claim t hat Emerson failed to promote her because she was a woman. Thi s determination involved an evaluation of lengthy testimony concerning the company's promotion policies

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and the qualifications necessary to operate the new computerized equipment

.

Emers on attempts to portray the selection process for the Group 6 set-up positions as t horoughly consistent, pointing to Grady Scott as the single example of an employee who was hired without experience either on machine setup or on the numerically-controlled m achines. The testimony at trial, however, paint s a more ambiguous picture of the selection process. For example, Frank Carter was initially found not qualified for a Miyano job. When he complai ned to his brother, John Carter, who was the general foreman in the machine shop, he was given the jo b. In addition, two other male emplo yees were first told that they were not qualified, and the n shortly thereafter were deemed to be qualified and given the job.

Moreover, the jury heard evidence from which it could have inferred discriminatory intent on Emerson's part. For ex ample, more than six years after Emerson adopted procedures to choose people for this job, it still had not given any wom en the experience allegedly necessary to qualify for the job. In addition, from the time Richard Blair, the foreman responsibl e for choosing several of the disputed positions, was hired in 1986, until the time of trial, no women worked in his department.

We find that the jury reasonably could have inferred from th e inconsistent nature of Emerson's selection process and Emerson's failure to select any women or to train women to meet the alleged qualifications of the job that Emers on intentionally discriminated by failing to promote Karcher to a Group 6 set-up position because of her sex. Thus, th e evidence supporting a finding of intentional dis crimination was sufficient to support the verdict on the failure-to-promote claims.

### -10- III.

Emerson claims that it was entitled to JAML on Karcher's retaliation claims. Emerson argu es that Karcher lacked standing to assert the rights of her husband and that she failed to state a claim upon which relief coul d be granted.

To meet the constitutional requirements of standing, a plaintif f "must allege personal injury fairly traceable to the defendant's allegedly unlawfu l conduct and likely to be redressed by the requested relief. " Allen v. Wright , 468 U.S. 737, 751 (1984). The evidence, viewed i n Karcher's favor, supports a finding that Emerson's dismissal of her husban d caused Karcher to suffer both economic and emoti onal damage. Although her husband received a higher paying job, the job offered him (and thus her) fewer benefits. Moreover, Karcher testified tha t she felt responsible for causing her husband t o leave a job that he liked and that this caused her emoti onal stress and placed an additional strain on her marriage. Th e tes timony of her psychiatrist and psychologist corroborated Karcher' s claims of emotional distress.

Emerson relies on McCabe v. Sharrett , 12 F.3d 1558 (11th Cir. 1994), and Parsons v. County of Del Norte , 728 F.2d 123 4 (9th Cir.) (per curiam),
cer t. denied , 469 U.S. 846 (1984), for the proposition that it had a n unequivocal right to dismiss Karcher's husband w hen a conflict of interest
arose in relation to Karcher's grievances and workers' compensation claims

. We find these cited cases to be inapposite, for they involved the question whether a governmental interest in avoiding conflicts of interest outweigh s an employee's constitutional right to intimate a ssociation. The employees who suffered adverse employment action in those cases did not attribut e that action to an impermissible retaliatory moti ve. Rather, the employees arg ued that the employers' articulated motive of avoiding a conflict o f intere st was outweighed by the employees' constitutional right to b e married. Thus, the credibility of the

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employers' explanation was not at issue.

In contr ast, Emerson's true motivation was the primary issue to b e resolv ed at trial. Karcher claimed that Emerson's motivation wa s retaliatory; Emerson claimed that it was motivat ed purely by the desire to avoid an emerging conflict of interest. The jury heard sufficient evidenc e from which it could have believed Karcher and disbelieved Emerson.

Emerson a lso argues that it was entitled to JAML on Karcher's claim that the company reta liated against her by issuing a written warning with respect to the bingo game. The jury heard evidence that Karcher was force d to sign the form, that the warning instructing e mployees with work-related injuries not to sign the form was concealed at t he time Karcher signed it, and that Karcher's injury had not occurred within the relevant six-month period. In light of this evidence, the jury could have inferred that the discipl inary action taken by the company was taken in retaliation fo r Karcher's grievances and claims against the company.

IV.
Emerson argues that the trial court erred in instructing the jury on Karche r's claim for damages for emotional distress, contending that th e instructio n was not supported by the evidence, was not limited to th e employment practices complained of, and did not require adequate proof of causation. We reject these arguments. In particular, we note that i n additi on to Karcher's testimony, the testimony of Dr. John Canale , Karche r's treating psychiatrist, and that of Dr. Shirley Salmon, he r treating psychologist, tied Karcher's depression and emotional stress to her job-related problems.

### -12- We also r eject Emerson's claim that Karcher's recovery of emotional distress damages is b arred by the Missouri workers' compensation statute. The exclusivity provision of the Missouri workers' compensation statut e provides that:

The rights and remedies herein granted to an employee shal l exclude all other rights and remedies of the employee . . . at common law or otherwise, on account of such accidental injury as death, except such rights and remedies as are not provided for by this chapter. Mo. Rev. Stat. § 287.120.2.

Clearly, this exclusivity provision can not preempt Karcher's federall y created right to recover damages for emotional distress under Title VII. Moreover, we decline to read the provision to bar the recovery of suc h damages under the MHRA absent clear direction from the Missouri courts, an d we have found no such direction.

Altho ugh Missouri courts have held that the exclusivity provisio n bars comm on law tort actions that arise out of incidents covered by th e workers' compensation statute, see , e.g. , Hill v . John Chezik Imports , 797 S.W.2d 528, 531 (Mo. Ct. App. 1990), they have not extended the exclusivit y provision to bar suits under the MHRA. Indeed, the language of the MHRA appea rs to preclude any such finding. The statute states, in relevan t part, that:
The provisions of this chapter shall be construed t o accomplish the purposes thereof and any law inconsistent with an y provision of this chapter shall not apply.

We interpret broadly the remedial purpose of the MHRA, and we conclude tha t
an award of emotional damages under the statute is not foreclosed by the possib ility that such damages would have been recoverable under th e workers' compensation statute.

### -13- We agree with Emerson that the punitive damages claim should no t have been submitted to the jury, for there was simply insufficient evidence tha t Emerson acted "with malice or reckless indifference to [Karcher's ] federally protected rights," as required under Title VII, or that Emerson' s
con duct was outrageous as required under the MHRA. See Kientzy v

. McDonnell Douglas Corp. , 990 F.2d 1051, 1062 (8th Cir. 1993) (standar d under Missouri law); 42 U.S.C. § 1981a(b)(1) (st andard under federal law). To supp ort her punitive damages claim with respect to the failure-to

promote claims, Karcher relies on Emerson's alleged deliberate choice to set qualifications that would effectively eliminate all women fro m obtaining Group 6 set-up positions. Moreover, Karcher argues that th e retaliatory actions taken by Emerson justify a punitive damages award.

This evi dence does not support a finding either that Emerson acte d with malice or deliberate indifference or that i ts conduct was outrageous. See Nelson , 26 F.3d at 804 (To recover punitive damages, Missouri la w requires a showing of conduct that would "shock the conscience and cause outrage"); Turic v. Holland Hospitality, Inc. , 85 F.3d 1211, 1216 (6th Cir

. 19 96) (duplicitous actions of employees were insufficient to suppor t punitiv e damages award under Civil Rights Act of 1991); Pandazides v

. Virginia Bd. of Educ. , 13 F.3d 823, 830 n.9 (4th Cir. 1994) (a showing of
mo re than intentional discrimination is required to recover punitiv e damages under Civil Rights Act of 1991). Accordingly, the punitive damage s award must be set aside.

V.
We address the remainder of Emerson's claims only briefly. Eme rson's contention that Karcher was not entitled to a jury trial on her MHRA claim s is forecl osed by our recent decision in Gipson v. KAS Snacktime Co. , 8 3 F.3d 225, 231 (8th Ci r. 1996). We have examined each of Emerson's claims of evidentiary error, and find

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themto be without merit. See Smith v. Firestone Tire & Rubber Co. , 755 F.2d 129, 134 (8th Ci r. 1985) (trial judge has broad discretion regarding the admissibility of evidence).

With r espect to Emerson's claims of error relating to the jur y instructions, we review the district court's jury instructions for abuse of dis cretion and on review must determine simply "whether th e instructions, taken as a whole and viewed in light of the evidence an d applicable law, fairl y and adequately submitted the issues in the case to the jury." Sherbert v. Alcan Aluminum Corp. , 66 F.3d 965, 968 (8th Cir. 1995). W e find some merit in two of Emerson's jury instruction claims

. First, we agree that the instructions should have included a specifi c provisi on on intent. Second, the instructions should have included a specific instruction on the requirement that plaintiff be qualified for th e applie d-for positions. Proof of both intent to discriminate an d qualification for the applied-for positions is n ecessary under a disparate treatment theory of sex discrimination. See Marzec v. Marsh , 990 F.2d 393 , 395 (8th Cir. 1993).

In this case, however, we do not bel ieve that Emerson was prejudiced by the district court's failure to instruct specifically on intent o r qua lifications. See Stemmons v. Missouri Dep't of Corrections , 82 F.3 d 817, 820 (8th Cir. 1996). The jury was instructed that to return a verdic t for Karcher, it must find that "plaintiff's sex was a motivating factor in defendant's decision." This instruction was sufficient to convey to the jury t hat unless Emerson's actions were intentional, Karcher could no t
recover. As to the qualifications issue, Emerson argued in closing that it failed to promote Karcher because she was not qualified. From th e instructions given, i f the jury believed Emerson that its true reason for failing to promote Karcher was her lack of qualifications for the job, the n the jury could not fi nd for Karcher. Thus, Emerson suffered no prejudice from the absence of m ore detailed instructions, and we find no reversible
error.

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Emerson's challenge to the instruction on Karche r's retaliation claim must likewise be rejected.

That portion of the judgment awarding compensatory damages i s affi rmed. That portion of the judgment awarding punitive damages i s
rev ersed, and the case is remanded to the district court for entry o f judgment dismissing that portion of Karcher's complaint.

A true copy.

Attest:

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