## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2032

___________ Margaret Nichols, *
* Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri. American National Insurance Co., *
* Defendant - Appellee. *

___________ Submitted: January 15, 1998 Filed: September 8, 1998

___________ Before LOKEN, FLOYD R. GIBSON, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.

Mar garet Nichols sued her former employer, American National Insuranc e Company (American National), alleging sexual hara ssment and constructive discharge, in violation of Title VII of th e Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. At trial Ame rican National’s psychiatric expert was permitted to testify that Nichol s exhib itedpoor “psychiatric credibility” and that her story was unreliable. Evidenc e was also admitted over Nichols’ objection that she had once had an abor tion which was against her religious beliefs. Evidenc e of certain sexual assaults by her supervisor and his attempt to keep her from disclosing them was excluded, as were records relevant to the determination of the date her employment ended. Nichols appeals from theThe dist rict court granted a pretrial motion in limine to exclude all evidenc e 1
concer ning her first period of employment. That ruling has not been challenged o n appeal.
-2- judgment entered in American National’s favor on the jury verdict and claims that the evidentiary rulings deprived her of a fair trial. We reverse and remand for a new trial.

I.

Nichol s worked for American National during two time periods. She was first employed as a home service agent from April 1982 unt il she resigned in 1988. In July 1 199 1 she was hired again and worked until she left the company in January 1993. In this second period she worked as an agent in two different district offices, first i n Kirkwood, Missouri and then in St. C harles. Her duties in the district offices included collecting insura

nce premiums on existing accounts, developing a network for finding

new customers, and selling insurance coverage to individuals. Most of her time was spent traveling to the homes of existing and prospective customers, making telephone calls from her house or from the office, and turning in funds and attending sale s meetings at the district office.

A.

Nichols a ttempted to prove the following facts at trial, many of which wer e disputed by American National. She alleged that she was subjected to a hostile work enviro nment

by her superiors in both the Kirkwood and St. Charles offices, that th e abusive treatment was based on sex and affected a term, condition, or privilege of her employment, that she reported it to several managers, a nd that she was forced to resign in 1993 bec ause her working conditions were intolerable. She testified at trial tha t wh en she went to work in Kirkwood in July 1991, her supervisor, Del Swift, put hi s arm around her and tried to put his hand on her breast, that she rebuked him in front-3-

of her coworkers, and that he referred to her boyfriend as her “su gar daddy” and hit her

on the b uttocks while she was bending over. She also said that on two occasions a coworker held up a Playboy magazine in the office and made jokes about it, and that nothing was done about the incidents despite her complaints to Swift and two othe r managers . She also alleged that Bob Coates, her sales manager in Kirkwood and her district manager in St. Charles, frequentlytook hold of her knees or touched her breast with his elbow and made

suggestive remarks while driving her to customer visits, that he often called or came to her home, and that on one occasion he grabbed her buttocks on a customer’s front doorstep.
Nichols presented evidence that when she started at the Kirkwood office she was

as signedto take over a book of insurance accounts that had lapsed and had missin g funds. The accounts were in disarray, and her commissions and bonuses were lower as a result. She alleged that she complained about the problems to Swift, b ut he blamed her for any deficiencies, threw sales materials on the floor at meetings rather tha n handing them to her, and ultimately took away her sales materials and ordered her not to issue any new policies. Nichols testified that she reported Swift’s conduct to th e regional director, David Evavold, but that he took no action, and that she wa s humiliated when Swift and Coates accompanied her to collect premiums and would not allow he r to handle money in front of customers for a period of twelve weeks. Sh e te stifiedthat Evavold held a staff meeting regarding her account book at which h e called her a thief but that he admitted when others were out of earshot that she was not.

There was evidence that Swift tried to fire Nichols in early July 1992 on th e basis that premium money was missing from her book, but the home office rescinded the termination after she filed union grievances and appealed to central administration. Highermanagement sent Charles Baker to investigate the situation. He met with Nichols and other Kirkwood staff and asked her to write down all her problems with the book of insurance accounts. Nichols testified that Baker refused to entertain he r complaints about sexual fondli ng and degrading remarks by her supervisors, however.-4-

He said he was o nly there to investigate matters relating to her account book, but that he would make a note that she had such other comp laints. After Baker’s investigation, manage ment

promised to remove from her record any reference to lapsed insuranc e policies and to provide back pay to compensate for lost commissions and bonuses

. Ni chols contends that the company never lived up to this agreement and that n o investigation was ever made concerning her complaints about sexual harassment.

At this time Nichols was transferred to the St. Charles office where she remained until she left the company in January 1993. She claimed that because her policy lapse rates were not reduced in accordance with theagreement, her earnings continued to go down, and t hat Coates, who had become district manager in St. Charles, told her h e wanted to replace her but continued to grab and fondle her knees, buttocks, and breasts. She said she repeatedly told Coates to stop touching her and that his advances wer e unwelcome, but

she did not file a written complaint. American National had a sexual harassment

policy which provided that a complaint against a superior in one’s direc t line of command could be filed with a central management officer. Nichols testifie d that she was afraid she wou ld be fired if she tried to file such a complaint and that she had alwa ys been told at agency meetings that any written correspondence with th e home office had to be approved by a manager.
Nichols alleged that she w as forced to resign on January 25, 1993, after Coates told her he intended to replace her with a white male, attempted to rape her on January 22, and then three days later fondled her breasts and asked her to sign an undate d resignation form in exchange for her p ay check. She claimed that January 25, the date when Coates delivered her check and the resignation form, was the date of he r
res ignationand constructive discharge. American National argued she had alread y resigned bef

ore January 22 and that she had not reported the attempted rape an d January breast fondling to the EEOC so that evidence was excluded at trial.Nichols’ complaint also raised claims for sex discrimina tion, breach of contract, 2 breach of a covenant of good fa ith and fair dealing, tortious interference with business expectancy, and intentional infliction of emotional distress. Summary judgment was granted in favor of American National on all of these claims except for se x discrim ination, and the dismissals have not been appealed. The sex discriminatio n cla im survived a motion for summary judgment, but Nichols chose not to submit it to the jury.
-5- B.
Nichols filed a charge of discrimination with the Equal Emp loyment Opportunity Commission(EEOC) on November 15, 1993, alleging that American National ha d discriminated against

her on the basis of her sex and that as a result she was forced to

res ign on January 25, 1993. After receiving a right to sue letter, she brought thi s actio n, raising sexual harassment and constructive discharge claims and seekin g comp ensatory and punitive damages. She claimed that she would have earned more 2
atAmerican National if her working conditions had not been so abusive and that her lost wages should

include the difference between her earnings after she was forced to leav e the company and the amount she would have properly earned there. She als o sought compensation for mental anguish, pain and suffering, and emotional distres s during her employment with American National and afterwards.

American National moved to strike or dismiss the complaint on the ground that Nichols’ EEOC charge was not timely. It claimed she gave oral notice of he r resignation on or before January 15, 1993, which it considered the date of the adverse employment

action on which she based her claims. It supported this contention with a nonproductivity report on Nichols complete d by Bob Coates dated January 15 which indicatedthat she would be leaving the company on January 22, 1993. Unde r American National’s interpretation, Nichols had 300 days from January 15, or unti l November 11, in which to file her EEOC charge, and h er charge filed on November 15-6-

was t herefore untimely. See 42 U.S.C. § 2000e-5(e)(1); Ashley v. Boyle’s Famou s Corned B eef Co. , 66 F.3d 164, 167 (8th Cir. 1995) (en banc). Nichols claimed tha t January 25, the day she was forced to resign, triggered the 300 day period so that her EEOC charge was timely filed, but that even if th e period started earlier, her complaint should not be dismissed because there were continuing violations of Title VII.

The district court treated the motion to strike or dismiss as one for summar y judgment and denied the motion because a pattern of sexual harassment was allege d which conti nued beyond January 19, 1993. The court reasoned that acts on or afte r January 19 were undoubtedly covered by her N ovember 15 charge and that it was also possible Nichols could recover for prior acts on her continuing violation theory except that she had not at this point rebutted the company’s assertion that she ha d communicate d her intent to resign by January 15. Nichols filed a motion fo r
rec onsideration and submitted an affidavit and a copy of notes taken by the EEO C investigator. The investigator’s notes contained a statement from Coates that he had told Nichols on January 25 it would be best for both of them if she found a differen t position and that she had resigned on that date. On reconsideration the cour t determined that Nichols had shown a genuine issue of material fact as to the date of her resignation and that she could pursue relief for the entire pattern of conduct during her second period of employment if she could prove that she was co nstructively discharged on or after January 19, 1993.

At trial there was conflicting evidence concerning the date Nichols resigned

. The EEOC c harge stated that Nichols was forced to resign on January 25, 1993

. Nichols o ffered evidence that Coates told the EEOC investigator she resigned o n Monday, J anuary 25 at his urging and that she collected premiums with Coates o n January 21. Nichols testified that she accepted a job at Liturgical Publications o n Januar y 22 and that her first assignment there began on January 26, but that she ha d pre viously observed another employee’s work for a few hours in order to decid e whether to take the job. The EEOC intake questionnaire asked for t he most recent date-7-

of alleged harm and Nichols had answered “end of March - 93 1/25/93.” During the intake in terview, however, the clerk made notes indicating “that she was forced t o resign Jan. 17, 1993, which cont. through March.” At trial the clerk did not remember the interview a

nd could not explain the meaning of “continued through March,” but it was her practice to explain the 300 da y rule. American National offered evidence that Coates thought Nichols would be leaving the company on Friday, January 22 and that he had a res ignation form signed by her with the date of January 22 entered in hi s handwr iting. The company pointed out that she was on vacation status for the tw o weeks en ding on January 22, and there was evidence that Nichols was hired b y Liturgical Publications on Monday, January 18 and that s he participated in training that week. The jury never rea ched the issue of when Nichols resigned because of the way the verdict form was designed.

C.
During trial American National move d twice for judgment as a matter of law on Nichol s’ Title VII claims and her requests for damages. Both motions were denied , and the c ase was submitted to the jury. There were separate verdict forms for th e sexual harassment and cons tructive discharge claims. The first question on each form ask ed the jury to find for one party or the other on whether there had been sexua l harassment or co nstructive discharge. If the first question were answered in Nichols’ favor, the jury would then need to answer in question two whether she ha d communicated her intent to resign by January 18, 1993 or sometime after that date

. Damage questions followe d. Since the jury answered the first question on both forms in American National’s favor, it did no t reach the questions about the date Nichols left the company or her damages. Nichols moved for a new trial after judgment wa s entered on the verdict, but the motion was denied.Each si de spells the psychologist’s name differently. Since Dr. Tyndall wa s 3 Nichols’ witness, we use her spelling. The dissent asserts that Dr. T yndall’s opinions were completely based on what 4 Nichols tol d her. Dr. Tyndall administered at least six different psychological tests , however, and she testified

about test results in the course of explaining the foundation for her opinion.
-8- II.
Nichols argues that evidentiary rulings by the trial court denied her a fair trial and prevented the jury from fully considering her claims. She contends that opinions given by American National’s psychiatric e xpert on her credibility were not a proper subject for exp ert testimony under Fed. R. Evid. 702 and that she was prejudiced by th e admission of testimony that she had had an abortion in violation of her religious beliefs. She also says that the court abused its discretion by excluding ev idence that Coates had sexually assaulted her and then intimidated her into not disclosing his conduct to th e EEOC and by excluding evidence showing that she continued to work for America n National after January 19, 1993. American National maintains that the testimony of its expert met the requirements of Fed. R. Evid. 702 and that the probative value of th e abortion evidence was not substantially outweighed by the risk of unfair prejudice. See Fed. R. Evid. 403. American National contends that the excluded evidence was either outside the scope of the EEOC charge or the requirements of the pretrial order.

A.

Nichols sought damages for emotional distress and in support offered th e test imony of Dr. Judith Tyndall, a licensed psychologist. Dr. Tyndall based he r 3 opinio n on a number of psychological tests she administered and interviews with Ni chols. She concluded that Nichols developed Post Traumatic Stress Disorde r

4 (PTSD) as a result of feeling stalked and embarrassed in front of her colleagues byDr. Tyndall defined undifferentiated somatoform disorder as a pattern of seeking 5 medical care for physical symptoms without medical cause and which most likel y reflect a psychiatric problem such as severe stress or anxiety.
-9- Co ates, Swift, and Evavold. Dr. Tyndall also believed that Nichols suffered fro m dysthym ic disorder, or low-grade depression, and generalized anxiety disorde r aggravat ed by her experiences at American National. In Dr. Tyndall’s opinion th e sexual assault by Coates on January 22, 1993 was a major traumatic event that could have precipitated N ichols’ PTSD. Although she testified about this traumatic cause at her deposition, she was not permitted to mention this basis for her diagnosis at trial.

Am erican National offered the testimony of Dr. Elizabeth Pribor, a psychiatrist who conducted an independent evaluation and interview of Nichols. Dr. Pribor also had access to Dr. Tyndall’s notes and report, raw data, and computer generated test scores, and Nichols’ medical records . Dr. Pribor agreed that Nichols suffered from low-grade dep ression and generalized anxiety disorder, but she considered them long ter m problems develop ed before Nichols started at American National. She disagreed with Dr. Ty ndall’s diagnosis of PTSD and additionally concluded that Nichols had a personality disorder and undifferentiated somatoform disorder. She did not rule out the 5 possibility that Nichols’ depression was aggravated while she worked at America n National from 1991 to 1993, but she said that the aggravation would have been before January 19, 1993, the date which the company says s tarted the 300 day period in which Nichols would have to show violations.

One of the central issues on this appeal is whether Dr. Pribor was permitted to testify beyond the proper scope of expert opinion. Nichols complains that Dr. Pribor went beyond diagnostic opinion to testifyabout her veracity and credibility. Dr. Pribor test ified that Nichols had poor psychiatric credibility. She defined this as poor ability to assess the cause of her own psychological state or to report her psychologica l symptoms accurately. In reaching this assessment she relied on her conclusions that-10-

Nichol s had multiple psychiatric stressors in her life but that she focused only on he r experience at American National , that Nichols said she had no psychological problems before work

ing for American National, that Nichols did not want to be in Dr. Pribor’s office and refused to answer some of her questions, that Nichols had had difficulties at

seve ral jobs in the past, and that her claims of harassment changed over time. Dr

. Pribor testified that Nichols ha d difficulty interpreting social settings and a tendency to blur fantasy with reality. She also stated that in an independent evaluation “you need to int erpret and weigh what they tell you” or else “you can get a very skewed an d inaccurate view of what actually happened.”
Dr. Pribor also gave her opinion that Dr. Tyndall had been influenced by the way Nichols related what had happened to her. She said that Nichols had recal l bias and that her st atements were affected by secondary gain and malingering She testified tha t “re call bias” refers to an individual’s belief that she has not experienced certai n symptoms even though her medical records indicate otherwise, such as Nichols ’ statement that she had not experie nced symptoms of depression and anxiety before she

wo rked at American National. She defined “secondary gain” as the possibility tha t claimed psychological symptoms are motivated by financial gain and mentioned th e potential for secondary gain in litigation where money is sought. She criticized Dr

. Tyndall for using a structured interview in diagnosing PTSD because it could allo w Nichols t o act under the influence of secondary gain and recall bias, “and this is -- I mean this is what happened.” She also define d “malingering” as feigning or making up symptoms for the purpose of secondary gain.
Nichols brought a moti on in limine related to this evidence and objected several times d uring Dr. Pribor’s testimony. Nichols objected immediately when Dr. Pribo r began to di scuss psychiatric credibility, on the grounds that this was not a prope r subject for expert testimony, that the term did not refer to a medical diagnosis, that there had been no foundation establishing that Dr. Pribor’s opinion was the kind an expert should give, and that much of her testimony invaded the jury’s province to-11-

dete rminecredibility. Nichols’ attorney raised several more objections as Dr. Pribo r continued, pointing o ut that this testimony invaded the province of the jury. American Nat ional repeatedly responded that the testimony was all related to the cause o f Nichols’ emotional distress and that it was offere d only on the issue of damages, not on liability. No limiting ins truction to this effect was ever given to the jury, however, and the objections to the evidence were all overruled.
Expert testimony is permissible when “scientific, technical, or other specialized knowledge will assist the t rier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. Before admitting proffered expert test imony the trial court must ensure that it is scient ifically valid -- that it is both reliable and relevant. Daubert

v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589, 594-95 (1993). Th e rel iability inquiry is a flexible one, but factors to consider include: (1) whether th e reasoni ng or methodology underlying the testimony can be and has been tested, (2 ) whether it h as been subjected to peer review and publication, (3) what the known o r potential rate of error is , and (4) the degree of acceptance within the relevant scientific community. S ee id. at 593-94; see also Gier v. Educational Service Unit No. 16 , 6 6 F.3d 940, 943-44 (8th Cir. 1995) (upholding exclusion of expert psychiatric testimony under Daubert ). The relev ancy of the testimony depends upon whether it can properly be applied to assist the trier of fact to decide facts in issue. See Daubert , 509 U.S. at 592-93. Such evidence is not helpful if it draws inferences or reaches conclusion s within the jury’s competence or within an exclusive function of the jury. See Unite d S t ates v. Call , 129 F.3d 1402, 1406 (10th Cir. 1997), cert. denied , 66 U.S.L.W. 3772 (U.S. June 1, 1998 ) (No. 97-8142); Pelster v. Ray , 987 F.2d 514, 526 (8th Cir. 1993).

The challenged testimony impugning Nichols’ psychiatric credibility an d suggesting that recall bias, secondary gain, and malingering had influenced her storyIn s upport of its position that all of Dr. Pribor’s testimony was properl y 6 received, American National cites disability benefit cases in which physicians hav e tes tified about malingering. These cases involve judicial review of administrativ e decisions, however, and do not deal with the admissibility of expert opinion before a jury. S ee, e.g. , Brasher v. Celebrezze , 340 F.2d 413, 418 (8th Cir. 1965). American National also cites two criminal cases where experts testified with respect to an insanity defense, but their testimony was not cha llenged or considered under Fed. R. Evid. 702 and 403. See United Sta

tes v. Bramlet , 820 F.2d 851, 855-56 (7th Cir. 1987); Brown v. United States , 375 F.2d 310, 318 (D.C. Cir. 1966).
-12- was not a proper subject of expert testimony under Fed. R. Evid. 702. The record does 6
not show that these theories met the Daubert criteria, and in her testimony Dr. Pribor sought to ans wer the very question at the heart of the jury’s task -- could Nichols b e believ ed? She testified that she needed “to interpret and weigh” what Nichols said or she could “get a very skewed and inaccurate view of what actually happened” and that Nicho ls was a malingerer motivated by financial gain. Opinions of this type create a serious danger of confusi ng or misleading the jury, see Fed. R. Evid. 403, causing it to substitute the expert’s credibility assessment for its own common sense determination. See United States v. Kime , 99 F.3d 870, 884-85 (8th Ci r. 1996), cert. denied , 117 S.Ct. 1015, 1714 (1997). Dr. Pribor was permitted to comment on N ichols’ reliability “in the guise of a medical opinion,” United States v. Whitted , 11 F.3d 782, 785-86 (8th Cir. 1993), and this “impressively qualified expert’s stamp” of untruthfulness on Nichols’ storywent beyond the scope of proper expert testimony. United States v. Azure , 801 F.2d 336, 340 (8th Cir. 1986).

Amer ican National claims that this testimony was not directly about Nichols as a witness but about her psychological state and g eneral witness reliability. The problem Dr. Pribor’s testimony was not so limited, however, a nd it crossed over the line of what is helpful to the trier of fact. See Fed. R. Evid. 702. Dr. Pribor did more than explain psychiatric terms and the situations in which they may arise. She provided her ow n opinion that Nichols’ statements to Dr. Tyndall were influenced by recall bias,-13-

se condary gain, and malingering. Cf. United States v. Rouse , 111 F.3d 561, 570-7 1 (8th Cir.) (expert described “practices of ‘suggestibility’” but did not testify that they were actually employed), cert. denied , 118 S.Ct. 261 (1997); Arcoren v. United States , 929 F.2d 1235, 1239 (8th Cir. 1991) (expert permitted to describe battered woma n syndrome but

not to give opinion on whether the victim’s actions were affected by it). Weighing evidence and determining credibility are tasks exclusive to the jury, and an exp ert should not offer an opinion about the truthfulness of witness testimony. Se e Rouse , 111 F.3d at 571; Westcott v. Crinklaw , 68 F.3d 1073, 1076 (8th Cir. 1995). Dr. Pribor’s testimony about psychiatric credibil ity, malingering, recall bias, and secondary gain went be yond the permissible areas of her testimony. She used these terms t o indicate tha

t Nichols’ version of the facts was inconsistent and changed over time and that it was tainted by bias and desire for financial gain. These were inferences for the jury to draw from the admissible evidence before it, and Dr. Pribor’s testimon y impermissibly instructed the jury on how to we igh that evidence. See Whitted , 11 F.3d at 785; Azure , 801 F.2d at 340. As the dissent acknowledges, this case turned o n whose story the jury would beli eve -- that of Nichols or that of her supervisors, Coates and Swift. Each side offered a different version of what had o ccurred so credibility was of crit ical importance. American National’s closing argument went beyond what th e dissent views as “fair argument” by using Dr. Pribor’s testimony to suggest that recall bias and secondary gain had affected Nichol s’ descriptions of key events and by failing to adhere to the prior assurance s that this part of the expert testimony was offered only on the issue of damages.

America n National argues that Nichols opened the door to this evidence b y offering Dr. Tyndall’ s testimony. Dr. Tyndall did not give any opinion about Nichols’

credibility, however. She gave her diagnosis of Nichols and an opinion as to the type of event that could have caused or aggravated her condition, but she left it to the jury to decide whether such events actually took place a s Nichols claimed. When American Nat ional asked her on cross examination about “psychiatric credibility,” Dr. Tyndal l stated she had heard the term but was not sure what counsel meant by it. When-14-

pressed further, she said “there was a psycho logical credibility with her,” but she never testified that

Nichols had “good” psychological credibility or about her truthfulness or the reli ability and consistency of her story. Dr. Pribor, on the other hand, used a psychologic al label to offer her evaluation of the truth of Nichols’ statements, th e
ac curacy of which is “a pure question of credibility.” Westcott , 68 F.3d at 107 7 (testi mony directed to reliability of out of court statements addressed issue that wa s exclusively for the jury).

Be cause “[e]xpert evidence can be both powerful and quite misleading,” a trial court must take special care to weigh the risk of unfair prejudice against the probative value of the e vidence under Fed. R. Evid. 403. Daubert , 509 U.S. at 595 (interna l quotations omitted). It is plain error to admit testimony that is a thinly veiled comment on a witness’ credibility, see Whit ted , 11 F.3d at 786-87, and in this case the prejudice was increa sed because of the use that was made of the testimony in closing argument.

B.

Nichols also argues that the district court abused its discretion in permittin g testimony at trial about her havi ng undergone an abortion when she was twenty six. In respo nse to a discovery interrogatory asking about any surgical operations or othe r medi cal care after 1980, Nichols had disclosed that she had had an abortion in 1985

. She later filed a motion in limine to exclude all evidence concerning the abortion due to its unfairly prejudicial effect. SeeFe d. R. Evid. 403. The court termed the evidence to be “vol atile” but relevant to the claim for emotional distress damages, and i t instructed counsel to approach the bench prior to any attempt to introduce it.

Without approaching the bench or giving prior notice, counsel for America n National asked Dr. Tynd all on cross examination whether at the time of her evaluation she knew that Nichols was a practicing Cat holic who had had an abortion. Dr. Tyndall answered that she had not then known about the abortion and conceded that an abortion-15-

couldhave a psychological impact on someone. Dr. Pribor testified that her opinion

on psychiatric credibility was supported by the fact that Nichols denied that the 1985 abortion had caused her continuing emotional distress. Nichols objected to questions abo ut the abortion, raising the same grounds cited in the motion in limine and addin g that Dr. Pribor had testified at her depositi on that she had no opinion about whether the abortion had had an impact on her. Neither expert testif ied at trial that the abortion was

a ca use of Nichols’ emotional distress or that it was a basis for her diagnosis o f psychological or personality disorders.

Nichols argues on appeal that the district court failed to consider th e inflammatory effect this evidence would have on the jury and its limited probative value. The court focused on the fact that she had disclosed it herself, but she had had a duty to answer the interr ogatory even if the answer were not admissible at trial, see Fed. R. Civ. P. 26(b)(1). She also argues that American National introduced the evidenc e primarily to support Dr. Pribor’s testimonyabout her psychiatric credibility, which was its elf inadmissible. American National responds that the abortion was relevant t o damage is sues and probative as an alternative cause of her emotional distress and that it was therefore not unfairly prejudicial.
The district court has discretion to exclude relevant evidence if its probative value is s ubstantially outweighed by the danger of unfair prejudice, see Fed. R. Evid. 403

. Unfai r prejudice relates to the risk that the jury will decide the case on an imprope r basis. See United States v. Guerrero-Cortez , 110 F.3d 647, 652 (8th Cir.), cert. denied , 118 S.Ct. 604 (1997). Informing the jury that Nichols had had an abortion presented the danger of provoking “the fierce emotional reaction that is engendered in man y people when the subject of abortion surfaces in any manner .” Nickerson v. G.D. Searle & Co. , 900 F.2d 412, 418 (1st Cir. 1990). The evidence exposed a very private area of Nichols’ life and a type of experience which frequently involves a conflict i n conscience. Such evidence tends to be highly prejudicial. That Nichols had had theApparently no objection was raised that the evidence was inadmissible under 7 Fed. R. Evid. 610 which prevents the use of religious beliefs to impair credibility.
-16- abor tioneven though it was against her religion increased the likelihood that the jury would view her as immoral and not worthy of trust and reach its verdict on such basis. 7

The evidence also had ver

y little probative value. American National claimed it would be relevant on damages, but neither expert gave an opinion that the abortion had contributed to Nichols’ emotional distress, only that it could have. Dr. Pribo r apparently stated in her deposition that she h ad no opinion about its impact on Nichols’ wellbeing. Although Dr. Tyndall and D r. Pribor differed to some extent in determining the psychological disorders Nichols suffered, neither one indicated in her trial testimony that the abortion played a role in her dia gnosis. It was thus incorrect to base admission of the evidence on the ground that it had been relied on in forming diagnoses

. Furthermore, the abortion was remote in time. Nichols was limited to evidence from the years 1991 to 1993, and the abortion occurred in 1985 and was not shown to be related to her employment history at American National. Cf. Berry v. Deloney , 28 F.3d 604, 608 (7th Cir. 1994). Finally, there were no limiting instructions to the jury to consider the abortion evide nce only as to damages and not in evaluating Nichols’ character and credibility. Cf. id. Under these circumstances it was an abuse of discretion to admit the evidence concerning Nichols’ abortion. See Guerrero-Cortez , 110 F.3d at 652.

C.
Nichols also argues that t

he exclusion of other evidence prevented the jury from hearing the full story about her work environment at American National and th e circu mstances surrounding her resignation. The district court ruled before trial on a summary judgment motion that certain allegations by Nichols were outside th e permissib le scope of the lawsuit because they had not been investigated by the EEOCThe district court’s written exclusion order only mentioned the January 2 2 8 incide nt in its discussion of the scope of the EEOC charge, but at trial the court ruled that the January 25 incident would be excluded for the same reason.
-17- and w ere not the subject of a conciliation proceeding. See E.E.O.C. v. Deligh t Whol esale Co. , 973 F.2d 664, 668-69 (8th Cir. 1992). At the same time, the cour t granted a motion in limine to exclude the evidence. The rulings excluded evidence that Bob Coates, her district mana ger, had sexually assaulted Nichols on January 22, 1993, grabbed her breasts on January 25, 1993, and made threats to prevent her fro m mentionin g the incidents to the EEOC. This excluded some of the worst evidenc e 8 concerning Nichols’ work environment and ena bled American National to argue at trial that she su ffered no damages within its computation of the 300 day limitations period. Nichols argues that this prevented a fair presentation of her case.
Nichols testified in a pretrial deposition about the two January inc idents involving sexual advances by Coates. On January 22 she and Bob Baker, her boyfriend and also an employee of American National, met Coates and other c ompany agents at their usual Friday evening meeting place for “shop talk.” Joint Appendix at 567. After the group left the bar, Nichols and Baker permitted Coates to stay at their residence to avoi d driving while intoxicated. Baker and Coates discussed the quality of another agent’ s work and then Baker went to bed. Nichols cla ims that Coates proceeded to make lewd

com ments, pinned her down, and demanded sex. She escaped and contacted a police officer friend who was later included on her witness list but prevented from testifying by the exclusion order. When Coates came by her home on Januar y 25, he caressed her kne es, came up behind her and held her breasts, and demanded she sign an undate d resignation form in exchange for her pay check.

Neither January incident was mentioned when Nichols went to the EEOC, bu t sexual harassment by Bob Coates was. The harassment repor t about Coates is included in the investigato r’s notes with the comment that Nichols did not want to follow up on-18-

it. In a pretrial affidavit, Nichols to ld the court that Coates had intimidated her into not di scussing the assaults with the EEOC investigator by repeated threats and question s ab out what would happen if she died in the middle of the investigation. There wa s evidence at trial that the EEOC investigator interviewed Coates concerning th e circumstances that could have caused Ni chols to resign, including physical gropings by Del Swift, bu t she testified that she did not investigate any allegations that Coates had sexually harassed Nichols.
Nichols argues that it was not necessary for the EEOC to have had an opp ortunity to investigate each and every factual allegation supporting her sexual harassment and constructiv e discharge claims and that her failure to mention these particular incidents to the EEO C should be excused because she did refer to harassment by Coates an d because of the threat s she received. Nichols says she was prejudiced because the jury did not get a complete picture of what evidence there was in support of her claims. For example, Dr . Pribor testified that in her opinion Nichols was not suffering from PTSD because there was no evidence of a traumatic event that could have caused the disorder, and Dr. Tyndall testified in her deposition that the January 22 assault b y Coates was one of the traumatic causal events. Nichols argues that she should have been allowed t o rebut Dr. Pribor’s testimony with the evidence about Coates’ sexual assaults an d threats. American National responds that this evidence s hould not be considered within the scope of the EEOC charg e because it is not of the same nature as the allegations in the charge and there was no evidence that the EEOC address ed them in its investigation or conciliation efforts or that the company had notice of them prior to the litigation.

The district court’s ruling on the legal issue of the proper reach of a Title VI I claim is reviewed de novo, see Boge v. Ringland-Johnson-Crowley Co. , 976 F.2d 448, 450 (8th Cir. 1992), and the motion in limine excluding the evidence is reviewed fo r abuse of discretion. Here the trial court determined on a summaryjudgment motion that the allegations related to the January assaults were beyond the reach of Nichols’-19-

clai m because they had not been specified in her charge to the EEOC. A Title VI I plaintiff must file a charge of discriminat ion with the EEOC before bringing a civil suit, but the scope of the subsequent action is not necessarily limited to the specifi c allegations in the charge. See Deligh t Wholesale Co. , 973 F.2d at 668. In determining whether an alleged discriminatory act falls within the scope of a Title VII claim, th e administrative complaint must be construed liberally “in order not to frustrate th e
re medial purposes of Title VII,” Cobb v. Stringer , 850 F.2d 356, 359 (8th Cir. 1988), and the plainti ff may seek relief for any discrimination that grows out of or is like o r
reasona bly related to the substance of the allegations in the administrative charge

. Philipp v. ANR Freight Sys., Inc. , 61 F.3d 669, 676 (8th Cir. 1995); Delight Wholesale Co. , 973 F.2d at 668.

Nichol s claimed that she was subjected to a hostile work environment a t American Na

tional that was so intolerable she was forced to resign. Her claim before the EEOC involved alleged incidents of sexual harassment, including unwelcom e groping b y supervisor Del Swift, and her Title VII complaint and evidence at tria l alleged derogatory and suggestive remarks and unwelcome touching and sexua l advances by S wift, Coates, and others. It is necessary to “‘look[] at all th e circumstances’” in order to determine whether the environment was hostile or abusive. Faragher v. City of Boca Raton , 118 S.Ct. 2275, 2283 (1998)(citat ion omitted); see also Hatha way v. Runyon , 132 F.3d 1222 (8th Cir. 1997). All evidence concernin g abusiveness of a

plaintiff’s working conditions is relevant to this inquiry, see Harris v. Fork lift Sys., Inc. , 510 U.S. 17, 23 (1993), and allegations that during her period o f employment Nichols’ supervis or Coates attempted to rape her and grabbed her breasts fitw ithin that category. The whole context of the interrelationship between the ke y players in the work relationship needs to be considered in such a case. Se e Meritor Sav. Bank v. Vinson , 477 U.S. 57, 69 (1986); see also Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1415-16 (10th Cir. 1987). An employer is vicariously liable for “an actionable hostile e nvironment created by a supervisor,” but if no “tangible employment action , such as discharge, demotion, or undesirable reassignment” is taken, an employerAmerican National does not argue that the January 22 assault was properl y 9 excluded because it happened outside the workplace. Nichols worke d out of her home, she was frequently obligated to work with Coates outside the office, and he often came to her home in connection with business.
-20- can avoid liability by provingan affirmative defense of reasonable oversight and of the employe e’s unreasonable failure to take advantage of corrective opportunities. Se e Faragher v. City of Boca Raton , 118 S.Ct. 2275, 2292-93 (1998); Burlington Indus. , Inc. v. Ellerth , 118 S.Ct 2257, 2270 (1998).

The district court refused to grant summary judgment to American National on Nichol s’ sexual harassment and constructive discharge claims and treated her hostil e work environment claim as alleging a pattern of incidents making for a continuin g violation

. See Varner v. National Super Mkts., Inc. , 94 F.3d 1209, 1214 (8th Cir

. 1996); Satz v. ITT Financial Corp. , 619 F.2d 738, 744 (8 th Cir. 1980). Where, as here,

a cou rt has determined that a plaintiff’s case described a continuing violation , allegations that fall within the scope of the discriminatory pattern are treated as “like or related” to that claim. See Philipp , 61 F.3d at 676. Nichols’ claim included evidence of unwelcom e sexual advances by both Coates and Swift, and the January 199 3 incidents were consistent with that evidence. These allegations were thus not a separate theory of discrimination, and they did not involve a distinct discriminatory action that

was differen t in nature or distanced in time from the other claims. Cf. Tart v. Hal l Behan Lumber Co. , 31 F.3d 668, 672-73 (8th Ci r. 1994); Williams v. Little Rock Mun. Wat er Works , 21 F.3d 218, 223 (8th Cir. 1994); Boge , 976 F.2d at 451. Since the y were not outside the framework or scope of the administrative charges, they should not have been excluded for that reason by summary judgment or motion in limine.

Ameri can National also argues that the January 1993 assaults by Coates wer e properly excluded because they took p lace after Nichols was no longer an employee of the company, but the argument about when she left the company raises issues of fact

9-21-

for a jury to resolve. The dissent accepts American National’s argument that thes e incidents occurred after the last day Nichols actually worked, but there is conflictin g evi dence in the record about the date her employment ended. Coates told the EEO C investigator that Nichols had resigned on January 25 which is consistent with her story that on that day he asked her to sign an undated resignation in return for her check and eviden ce that the date entered on the resignation form, January 22, was in hi s handwriting. The circumstances a nd timing of Nichols’ resignation and whether or not she collected premiums during the week s of January 11th and January 18th, were hotly disputed at trial. T he district court was unable to determine on summary judgment the date she communicated her intent to resign or the date she actually stopped working

. Nichols presented evidence that Coates admitted to the EEOC that she worked fo r Am erican National until January 25, 1993 when she resigned at his urging, but ther e
was a lso evidence that she had accepted different employment by January 18 and had communicated

her intent to resign before that date. The verdict forms used at tria l submittedthis factual issue to the jury, but the question remained unanswered for the

reason s previously discussed. Nichols would be able to recover on her hostil e environment claim if the jury found that abusive incidents occurred bot h within the filing period and while she was still working for American National. See Kimzey v. Wal

Mart Stores, Inc. , 107 F.3d 568, 572-73 ( 8th Cir. 1997). There were material issues of fact related to whether the January incidents -- alleging very abusive con duct -- occurred while Nichols was still an employee, and it would be up to the trier of fact to decide the date on which Nichols’ employment ended.

D.

Nichol s was prevented from introducing customer premium receipt books t o sup port her testimony about when she stopped working for American National. Sh e says she was forced to resign on Monday, January 25, 1993 after two weeks of nominal-22-

vacation d uring which she made customer calls and collected premiums. Premium s
were to be turned in to the company by the end of the week in which they wer e col lected, and Nichols testified that she turned in premiums on each of her last tw o Frida ys, January 15 and 22. American National contests her version of the facts an d says she communicated her intent to resign b y January 15 at the latest and that her final week of working and collecting premiums was the week starting January 4. It claims she was on the payroll until January 22 only because she was receiving vacation pa y duri ng her last two weeks of employment and that any premium money she turned i n later i n the month was actually collected before January 8. It objected to introduction of the premium receipt books on the basis that they were not timely produced, an d Nichols argues that the district court abused its discretion in excluding them.

The i ssue of when Nichols last collected premiums was important, and Nichols plannedto offer proof on this issue through company form 1487. American National agents were required to turn in this type of form along with collected premiums, and the forms recorded payments as they were received. Nichols made several discover y requests for 1487 forms which wo uld show she had collected premiums during her last two weeks with the company. Not until a few days before trial, at a hearing on he r motion to compel production, did American Nat ional indicate that the forms from those weeks had long before been destroyed under a two year retention policy. The company had previously produced what it had described as the final six 1487 forms submitted by N i chols, the last of which was dated January 5, 1993. It now explained that these six forms had not been destroyed with the rest because they had been held separately for an audit of Nichols’ termination.

When Nic hols learned just before trial that the 1487 forms she had requeste d

were una vailable, she then tried to obtain premium receipt books from her forme r customers as an alternate method of proof. These books were kept by customers as a record of their premium payments. In them the agent would note the date and eac h amount paid and initial the entry. Nichols was able to obtain such premium receipt-23-

books from eight customers, and she transmitted copies of the relevant pages b y facsimile to American N ational on the Saturday before trial. On Monday, the day trial was to begin, Nichols sought leave to supplement her e xhibit list with these records and stated she intended to use t hem to refresh her recollection, under Fed. R. Evid. 803(5), as to which premiums she had collected during her last two weeks of work. American National filed a supplemental motion in limine to exclude the premium receipt books, clai ming unfair prejudice because of lack of time to authenticate the records. Nichols argued that the delay was due solely to the company’s fail ure to notify her sooner of the two year retention policy and that she had obtained the customer names from a January 25, 1993 account audit report generated by American National which wa s on her exhibit list. The court granted the supplemental motion in limine, ruling that the policy holders couldhave been contacted earlier and that the production was untimely and therefore prejudicial to American National.
Nichols argues on appeal that she demonstrated good cause for not producing the premium receipt books earlier because she had no way of knowing that the 1487 forms she needed had been destroyed until American National disclosed it shortly before trial. She contends that the books were admissible, under Fed. R. Evid. 1004(1) and (3), as other evidence of the contents of the 1487 forms and that they were essential to a fair determination by the jury of the events surroundi ng her resignation. American National resp onds that the district court has broad discretion to exclude evidence not disclosed in comp liance with its pretrial orders, see Admiral Theatre Corp. v. Douglas Theatr e Corp. , 585 F.2d 877, 897 (8th Cir. 1978); Burlington Northern R.R. Co. v. Nebraska , 802 F.2d 994, 1005 n.10 (8th Cir. 1986), and that the records were properly excluded because it was unprepared t o cross examine or present its own evidence relating to the exhibits and because Nichols could have obtained them earlier.Nichols did not realize until that time that the receipt books would be her only 10 method o f proving how long she continued to perform work. She had requested th e 1487 for ms during discovery but was forced to bring a motion to compel in order t o obtain a response. It was at the hearing on that motion just before trial that she learned that the requested documents f or the critical weeks between January 5 and January 25 had been destroyed.
-24- The late atte mpt to use the premium receipt books was not due to bad faith o r lack of diligence. Nichols did not fail to file a supplement ary exhibit request when she 10 became aware of the need to do so, cf. Iowa-Mo Enterprises, Inc. v. Avren , 639 F.2d 443, 4 47 (8th Cir. 1981), or repeatedly violate pretrial orders and deadlines durin g discovery, cf. Admiral Theatre Corp. , 585 F.2d at 897. She only became aware of the need for this particular evidence when American National notifie d her on the eve of trial th atthe other forms had been destroyed. The premium receipt books would hav e assisted t he jury in determining whether Nichols worked when she claimed she had , which in turn would have affected its consideration of other evidence. The distric t court’ s ruling took account of American National’s expressed concern abou t abbreviated time to investigate and respond to this evidence, but in the event of a new tr ial there would be opportunity to look into the evidence so that concern would b e removed. See Burlington Northern R.R. Co. , 802 F.2d at 1005 n.10.

E.

Nichol s argues that the judgment must be reversed and that she is entitled to a
new tria l. American National says even if the district court erred or abused it s disc retion, it was harmless error because Nichols was not prejudiced by it and th e judgment should be upheld.
A judgment should only be reversed because of erroneous evidentiary rulings if they are of a nature to have a s ubstantial influence on the jury verdict. See Rouse , 111 F.3d at 572; Peterson v. City of Plymouth , 60 F.3d 469, 475 (8th Cir. 1995). In this-25-

case the cumulative effect of the evidence that was inadmissible under Fed. R. Evid. 702 and 403 an d the exclusion of evidence designed to put the full context of he r employment

history before the jury prejudiced Nichols’ ability to have her case fairly considered on it s merits. See Crane v. Crest Tankers, Inc. , 47 F.3d 292, 296 (8th Cir. 1995); see also Fed. R. Civ. P. 61 (error is only reversible whe n it appears “inconsistent with subs tantial justice” and affects “substantial rights of the parties”). Althoug h Amer ican National argued to the district court that both the expert opinion o n psychiatric credibility and the evidence of an abortion i nconsistent with religious beliefs

wer e offered only for a limited purpose, this evidence was used to cast doubt on he r motivation and her ability to tell the truth. The case turned on “whose story the jur y beli eved,” Cummings v. Malone , 995 F.2d 817, 825 (8th Cir. 1993), and America n National relied heavily on the inadmissible evidence to argue in cl osing that Nichols had dist orted what happened to her at the company and to undermine her credibility. Cf

. Whitted , 11 F.3d at 787. Although American Na tional now contends that this evidence could not have been pre

judicial because it only went to damages, a question which the jury never reached, its own closing argument at trial demonstr ates that the evidence was intended to influence the jury’s determination of lia bility. It is not possible to “say with certainty that the jury’s decision would have been the sa me absent this evidence.” Hale v. Firestone Tire & Rubber Co. , 7 56 F.2d 1322, 1333 (8th Cir. 1985); see Campbell v. Coleman Co. , 786 F.2d 892, 896 (8th Cir. 1986).
“[G]iven the way this trial unfolded,” errone ous evidentiary rulings “so seriously altered its course” that Nichols was denied a fai r and impartial presentation of her case, and the error was therefore not h armless. Cummings , 995 F.2d at 827; Murphy v. L & J Press Corp. , 558 F.2d 407, 412 (8th Cir. 1977). T he able district court was presented with a number of the evidentiary arguments in advance of tri al and did not then have the benefit of knowing how the evidence woul d be presented and used. If the whole series of evidentiary motions had been considered at the time of trial and in relation to each other, the total picture would have been clearer. The evidence admitted over objection turned out not to be so limited in nature as counsel had argued, and it-26-

w a s not used in the restricted way counsel had advocated. The record brings to mind the old adage that once the camel’s no se is under the tent, it is not easily dislodged and resulting damage not easily curtailed.

Thoro ugh review of the record makes the unfair prejudice at trial apparent , particularly in the absence of limiting in structions to the jury and the restrictions placed

on the presentation of Nichols’ evidence. The case came down to a swearing match, and it wa s up to the jury to decide which side to believe. Dr. Pribor’s opinion abou t Nichols’ credibility and motivation and the evidence about her violating her religiou s beliefs by having an abortion denied Nichols the “right to untainted jury deliberations and . . . a ve rdict which is based on admissible evidence.” Crane , 47 F.3d at 297

. Under these circumstances, she is entitled to a new trial on her claims of sexua l harassment and constr

uctive discharge. See id. It is for the jury to decide who should prevail in th is case, but it should be on the basis of full and fair consideration of th e evidence. Murphy , 558 F.2d at 412.

III.

This is the unusual case where a new trial is needed because a full and fai r presentation of the claims was impeded at trial, and substantial prejudice resulted. I t very well ma

y be that American National will be entitled to judgment in its favor after a retr ial, but it is not now possible to have confidence in the outcome of the first. See Hale , 756 F.2d at 1333; Murphy , 558 F.2d at 412. For the reasons discussed, w e
reverse and remand to the district court with directions to vacate the judgment and to grant Nich ols a new trial on her claims for sexual harassment and constructiv e discharge.-27-

LOKEN, Circuit Judge, dissenting.
I respectfully dissent. After a seven-day trial, the jury returned a verdict in favor of American National Insurance Company on Margaret Nichols’s claims of sexua l harassment and constructive discharge. In my view, the case was fairly tried, and we should affirm the judgment entered on the jury’s verdict.

1. The Expe rt Testimony Issue. The primary support for Nichols’s claim fo r $500,000 in compensatory damages for emotional distress was the testimony of he r expert psychologist. Dr. Tyndall testified that Nichols’s mild depression, generalized anxiety, and post traumatic stress disorder were caused by, or at least aggravated by, her employment experience at American National. On cross exam, the defens e established that Dr. Tyndall’s opinions were based entirely upon what Nichols had told Dr. Tyndall, who made no detailed review of Nichols’ s family history, medical records, prior and subsequent employment, and other possible causes of emotional distress.

A f ter unsuccessfully objecting to Dr. Tyndall’s opinions as lacking foundation, the defense attempted to rebut her testimony with two experts. Psychologist Wetzel, who did not personally e xamine Nichols, testified that Dr. Tyndall’s methodology was not appropriate forensic psychology. That set the stage for psychiatrist Pribor, who had personall y interviewed Nichols for some five hours. When Dr. Pribor first introduced the concept of psychiatric credibility, plaintiff o bjected that this expert was about to tell the jury that Nichols should not be believed. The defense explained that Dr. Pribor’s testimony would not be an attack on Nichols’s credibility but instead an attack on the credibili ty of Dr. Tyndall’s opinions, based upon the fact that Dr. Tyndall had take n whatever Nich ols told her at face value. The district court ruled, “[Plaintiff] will have to listen and see what [Dr. Pribor] says and ma ke objections. I can’t give you a motion in limine on this since I don’t know exactly what [defense counsel] is getting into.”-28-

I conclude this evidentiary dispute did not result in reversible error for thre e
reasons. First, there was nothing wrong with the defense concept for impeachin g Dr. Tyndall’s opinions. One mental health expert may opine that the opponent’s expert should not have accepted the plain tiff’s statements as to damage and causation without further investigation. The district court mi ght have cautioned the defense not to use the term psychiatric credibility because it sounds like the expert is invading the jury’ s provin ce. But the failure to do that was not a plain error abuse of discretion. Nichols opened up this line of te stimony by the use of her expert. Cf. United States v. Gipson , 862 F.2d 714, 717 (8th Cir. 1988). Thus, the district court properly denied Nichols’s initial motion in limine.
Second, Nichols did not preserve the issues on which th e court bases its reversal. The word Daubert

does not appear in the trial transcript , and for good reason -- Nichols

was relying on the same kinds of psychological concepts and opinions for her larg e emotional distress damage claim. Moreover, when Dr. Pribor introduced rather late in her direct testimony the concepts of “recall bias,” “seco ndary gain,” and “malingering,” Nichols did not object, despite the court’s explicit instruction that specific objections were necessary. Finally, Dr. Pribor’s use of these terms was limited to supporting her opinio n that Nichols’s statements to Dr. Tyndall should not have been taken at fac e
va lue. This defense expert did not comment directly on Nichols’s fact testimony. To the extent Dr. Prib or’s testimony indirectly cast doubt on Nichols’s overall credibility, it was a self-inflicted wound caused by her own reliance on a psychological expert.

Th ird, given the specific context of Dr. Pribor’s testimony, any error wa s harmless. The key evidence at trial was the lengthy direct and cross examination o f Nichols, plus the credibility of terse testimonial denials by Swift and Coates. During the lengthy closing arguments, Dr. Pribor’s testimony was mentioned only once, when defense cou nsel argued that Nichols changed her story for the litigation and had a financial motive to do so:-29- Now t hat’s a mighty motive to distort. To begin, remember tha t phrase, recall bias. I think well maybe she does actually believe thes e things happened, but recall bias may very well be involved. Remembe r that term that the psychiatrist talked about? Secondary gain. How tha t can affect how one recalls things that happened.

That is fair argument. Thus, this record will not support an inference that the jury’ s assessment of Nichols’s credibility was spoon fed by Dr. Pribor.
2. The Abortion Testimony. Nichols disclosed her prior abortion in interrogatory answers. The district court denied her pretrial motion in limine to exclude all references to the abortion because the interrogatory answers had been made available to th e parties ’ experts. The issue came up briefly twice at trial. Defense counsel’s question to Dr. Tynd all and Dr. Pribor’s mention of the abortion as one pre-American National stress or were consistent with the pretrial discussion and ruling, so there was no unfair surprise. Viewed in context, the testimony was relevant, and any Rule 403 error was harmless.

3. The Coates Assaults. Nichols’s EEOC charge only complained o f construc tive discharge -- that she was forced to resign. I agree with the court tha t evid ence of sexual harassment creating a hostile work environment would be relevant to that charge, and alleged sexual assaults could constitute such evidence. However , the alleged January1993 sexual assaults by Coates occurred after the last day Nichols actually worked, so they could not be evidence supporting a claim of constructiv e discharge. Thus, the alleged assaults could only be relevant to a different kind of sexual harassment claim. Yet Nichols did not generally alleg e sexual harassment in her EEOC cha rge, and the EEOC investigator testified at trial that she did not investigat e haras sment

by Coates because Nichols told her not to . This unique and highl y inflam matory accusation was never the subject of EEOC conciliation and it did no t support the constructive discharge claim that was conciliated. On this record, I-30-

conclude the district court correctly ex cluded this evidence. Indeed, the court arguably gave Nichols more leeway than her EEOC charge warranted when it submitted to the jury a separate claim of sexual harassment, a claim that was not in her EEOC charge. The e vidence on both claims was properly limited to Nichols’s work experience a t American National, and the jury rejected both claims, sexual harassment an d constructive discharge. The verdict should be upheld.

4. The Recei pt Books. This evidence was relevant only to the statute o f limitat ions issue, which the jury never reached. Therefore, by itself this evidentiar y ruling cannot be reversible error. Moreover, the dis trict court’s decision to exclude this evid ence because of Nichols’s tardy disclosure was correct -- Nichols had ampl e warning of American National’s document retention policy and should have gathered up r elevant customer 1487’s long before trial and disclosed them on her exhibit lists

. There mi ght well be foundation and authenticity problems with such documents, s o defense counsel’s concern about their last minute disclosure was understandable.

A true copy.

ATTEST:

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