## United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 97-4373

Charles Theodore Denesha, *
* Appellee, *

*
v. *
* Farmers Insurance Exchange, *
* Appellant. * Appeals from the United States No. 97-4374 District Court for the Western District of Missouri.
Charles Theodore Denesha, *
* Appellant, *

*
v. *
* Farmers Insurance Exchange, *
* Appellee. *

Submitted: September 24, 1998
Filed: November 3, 19982

Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

Charles Theodore Denesha bro ught this age discrimination suit against Farmers Insurance Exchange (Farmers), his former employer, pursuant to the Ag e Discrimi nation in Employment Act (ADEA), 29 U.S.C.A. §§ 621-634 (West 1998) , and the Missouri Human Rights Act (MHRA), Mo. Ann. Stat. § 213.055 (Verno n 1994). F armers appeals from final judgments entered in the District Court for th e Western District of Missouri. A jury awarded Denesha compensatory and liquidated damage s under the ADEA and punitive damages under the MHRA. Upon post-tria l motions the court granted Denesha further e quitable relief in the form of attorneys fees and front pay and granted Farmers’ motion for judgment as a matter of law with respect to p unitive damages. Farmers appeals from denial of its motions for judgment as a matter of law or in the alternative a new trial on the issues of liability and willfulness und er the ADEA, the award of front pay and liquidated damages, and the award o f attorneys fees and costs. Denesha cross-appeals on the question of punitive damages and the amount of the front pay award. We affirm in part and reverse in part.

I. BACKGROUND
“We recite the facts in the light most favorable to the jur y verdict and the district court’s findings. ” Newhouse v. McCormick & Co., Inc. , 110 F.3d 635, 637 (8th Cir. 1997). In October of 1992, Charles Denesha was 55 years old and had been employed by Farmers as a Claims Representative (CR) for seventeen years. Denesha began his

career with Farmers in 1975 as an Office Claims Representative (“OCR”), an entry

level offi ce job handling small property claims over the telephone. In 1979, Denesha bec ame a Field Claims Representative (“FCR”) handling bodily-injury claims. I n Novem ber of 1992, the Grandview Branch Claims Office (“BCO”), Denesha’s placeFrom at l east 1982, raises at Farmers were based on performance. During the 1 seventeen-year period fr om 1975 to 1992, Denesha had received consistently positive evaluations under nine different supervisors. Though Joe Wilfong had replaced Clark as Denesha’s direct supervi sor after the 2 merger, Clark prepared Denesha’s 1992 salary review based on her day-to-da y supervision of his work through October 1992 and recomm ended a 4% salary increase.

3 of work from 1975, merged with the Kansas City BCO. Prior to the merger, Denesha had never been denied a raise or formally disciplined. 1

In early December 1992, John White, the Branch Claims Manager for th e Kansas City BCO, al tered the salary review completed by Denesha’s former supervisor, Julie Clark. White went beyond the review period in question to find examples of poo r

2 quality work in order to justify denying a raise. Prior to the den ial of the raise, Denesha had received no negative information regarding his performanc e. In both his November and December case reviews, however, Denesha’s new supervisor, Joe Wilfong, ha d stated that the “younge r employees [are] running circles around the older employees.” (Tr. at 1216.) When Denesha complained about the salary decision, Wilf ong and White treated him differently from other employees, failing to follow various offic e procedures. In addition, Denesha was not given leave -time to catch up on files as were other transferees from the Grandview BCO.

In October 19 93, Denesha was demoted to an entry-level OCR position, which White had expressed an intention of discontinuing. Despite the demotion, Denesh a maintained his FCR files in addition to the new OCR workload that White himsel f described as “horrendous.” Additionally, Wilfong began recording complaints about Denesha without giving verbal warnings, though other employees received verba l warning s before any complaints became part of their permanent record

. Notwithstanding White’s and Wilfong’s determination that Denesha ’s performance was inadequate, an audit by Farmers’ regional office showed that Denesha was doing his4

job. Purportedly due to consumer complaints, Farmers terminated Denesha’ s employment in May 1994.

Denesha then brought suit against Farmers, alleging that he was denied a raise and subsequently dismi ssed because of his age. Farmers contended that Denesha was denied a ra ise, demoted, and dismissed because of his poor performance. The jur y found that Denesha’s age was a determining factor in Farmers’ decision to deny th e rais e and to fire him. Pursuant to special verdict forms, the jury determined tha t Farmers’ violation of the ADEA was ‘willful,’ thereby supporting an award o f liquidated damages, and that Farmers’ conduct was ‘outrageous,’ thereby supporting

an award of $4 million in punitive damages under the MHRA. The district court se t aside the award of pun itive damages and by final order awarded Denesha $102,614 in back pay with liquidated damages in the same amount, $61,666.67 in front pay, an d attorneys fees in the amount of $149,906.97. Both parties appeal.

II. DISCUSSION
A. Jury Verdict on Denial of Raise and Subsequent Discharge

The f irst issue raised on appeal is whether the district court erred in denyin g Farmers’ motion for judgment as a matter of law or, in the alternative, for a new trial

on th e claim that Denesha’s denied raise and subsequent discharge were products o f inte ntional age discrimination. Farmers contends that because Denesha’s poo r performance was well documented and because it treated him no differently tha n similarly situat

ed employees, the district court committed clear error by sustaining the jury’s verdict. Denesha, for his part, argues that even where the defendant offers a legitimate, non discriminatory reason in support of its actions, the plaintiff may prevail by presenti ng sufficient evidence for a jury to infer the ultimate fact of unlawfu l discrimination.5

This court reviews de novo the denial of a motion for judgment as a matter o f law, applying the same standard as the trial court. See Cross v. Cleaver , 142 F.3 d 1059, 1066 (8th Cir. 1998); Equal Employment Opportunity Comm’n v. HBE Corp. , 135 F.3d 54 3, 554 (8th Cir. 1998). The standard of review for sufficiency of proof in

an ag e discrimination suit embraces the fundamental issue of “whether [the plaintiff ] pro duced sufficient evidence to allow a jury reasonably to find that [the employer ] intenti onally discriminated against him on the basis of his age.” Newhouse, 110 F.3d at 639 (quo ting Ryther v. KARE 11 , 108 F.3d 832, 835 (8th Cir.) (en banc), cert

. denied , --- U.S. ---, 117 S. Ct. 2510 ( 1997) (alteration in original)). “Appellate review of a j ury verdict is extremely deferential.” Browning v. President Riverboat Casino , 139 F.3d 631, 634 (8th Cir. 1998). We will not reverse a jury verdict for insufficient evi dence unless “after viewing the evidence in the light most favorable to the verdict, we conclude that no reasonable juro r could have returned a verdict for the non-moving part y.” Ryther , 108 F.3d at 836. In reviewing a denial of a motion for judgment as a matter of law, we must (1) consider the evidence in the light most favora ble to Denesha, (2) assume that all conflicts were resolved in favor of Denesha, (3) assume as proved all facts that Denesha’s evidence tended to prove, (4) give Denesha the benefit of all favorable inferences that may reasonably be drawn from the proved facts, and (5) deny th e motion unless all the evidence points one way and is susceptible of no reasonable inferences sustain ing Denesha’s position. See Nelson v. Boatmen’s Bancshares, Inc. , 26 F.3d 796, 800 (8th Cir. 1994); Hicks v. Brown Group, Inc. , 902 F.2d 630, 649 (8th Cir. 1990). A motion for a new trial, by contrast, should only be granted if “the jury’s verdict were against the great weight of the evidence so as to constitute a miscarriage of justice.” Pulla v. Amoco Oil Co

. , 72 F.3d 648, 656 (8th Cir. 1995). We review the denial of a motion for a new trial for abuse of discretion. See id.

The ADEA m akes it “unlawful for an employer . . . to discharge any individual

or otherwise discriminate against any individual with respect to his compensation , terms, conditions, o r privileges of employment, because of such individual’s age.” 296

U.S.C. § 623(a)(1). Protection under the ADEA extends to persons age f orty and older. 29 U.S. C. § 631. A plaintiff may meet his burden of establishing intentional ag e discrimination by relying on either direct or indirect evidence. See Beshears v. Asbill , 930 F.2d 1348, 1353 (8th Cir. 1991) (citation omitted). Analysis under the MHR A follows that of the ADEA. See Hanebrin k v. Brown Shoe Co. , 110 F.3d 644, 646 (8th Cir. 1997); McMullin v. McRaven , 882 S.W.2d 772, 774 (Mo. Ct. App. 1994).

Far mers strenuously argues that no reasonable jury could find “ both that th e [employ er’s proffered] reason [for the action taken against him] was false, and tha t disc rimination was the real reason.” Ryther , 198 F.3d at 838 n.5 (quoting St. Mary’s Honor Ctr . v. Hicks , 509 U.S. 502, 515 (1993)) (emphases in original). Contrary t o defendant’s contentions, however, the fact that Farme rs can offer legitimate reasons for plaintif f’s denial of a salary increase and subsequent dismissal does not automatically entitle it to judgment as a matter of law. Wh ile Farmers offers a host of facially benign

reasons for denial of the raise and the subsequent events leading up to and includin g Denesha’s discharge, o ur review indicates that the record likewise amply supports the jury’s conclusion that the offered reasons were merely a pretext for underlying ag e discrimination.

Substantial evidence in the record demonstrates that White and Wilfong did in fact judg e Denesha’s work by criteria different in both kind and quantum from that of other employees. In September 1992, in his last performance evaluation prior to th e merger, Denesha received a ratin g of “very good.” Clark, Denesha’s supervisor at the time, recommended him for a program in which FCRs with a demonstrated ability to work witho ut supervision were permitted to operate out of their homes. Clark als o
recom mended a 4% salary increase based on her day-to-day supervision of his wor k through October of 19 92. On December 4, 1992, at a time when Clark was out of the office on vacation, John White altered the perf ormance review completed by Clark andThe review form completed by Clark requires the sig nature of both a supervisor 3 and a manager. The purpose of o btaining a manager’s signature on the review form is to indicate agreement with the supervisor’s appraisal.
Ev idence presented at trial indicates that White also failed to follow company 4 procedure in compiling the negative information. He reviewed files in which the initial work was performed outside the period under immediate review, including one tha t dated to 1988. Additionally, he did not follow accepted company practices i n tabulating the timeliness of Denesha’s cl ient contact and in failing to treat contact with a client’s attorney, the leaving of business cards at a home address, or contact made by an OCR as full contact.

7 signe d both his and Clark’s name to the document. While Clark’s portion of th e 3 evaluation had presented a complimentary picture of Denesha’s achievements during 19 92, White noted deficiencies in his performance and wrote that “[y]ou nee d 4 considerabl e improvement to assist the BCO in meeting it’s [sic] service and cos t goals.” (Pl.’s Ex. 5.) White testifi ed that he assumed Clark would meet with Denesha to explain the performance r eview, despite the fact that he had not informed her of nor explained the basis for the alterations made to her evaluation. Clark o nly became aware of the alteration when she received a letter from Denesha. Only Denesha and one other employee, also over fifty years of age, at the Kansas City BCO were denied raises in 1992.
When questioned in a deposition as to the ne gative information added to Clark’s performance review, White could not identify the source of the complaints. At trial he contended that he, along with other managers, ha d received complaints about Denesha. However, none of the managers allegedly receiving complaints about Denesh a doc umented them, and Farmers was unable to produce alternative sources o f documen tation. Neither Wilfong nor Clark, his direct supervisors during 1992 , documen ted any complaints about Denesha prior to the December salary review

. Subsequently, White admitted that there was no documentation to su pport his allegation of complaints.An evaluation of the Kansas City BCO performed on March 22, 19 93, indicated 5 that the caseload for the FCRs in that office was unmanageable. The repor t
recomme nded a “[d]rastic[] reduc[tion in] the case load of the field CRs to a manageable level.” While the repor t did not indicate that any FCR was further behind than any other in processing claims, evidence indicates that Denesha was assigned a subst antially greater number of claims in the first five months of 1993 than any of his colleagues.
Denesha’s caselo ad difficulties were exacerbated by procedures at the Kansas 6 City BCO pertaining to status reports. The Grandview BCO had operated under a special program in which FCRs were not required to turn in 90-day status reports on their files. Other employees who transfe rred from the Grandview BCO were taken off assignments so that they cou ld catch up with their status reports. While FCRs Shanes and Moo dy were given from an additional ten months to a year to catch up on thei r
8 Prior to being denied a salary increase, Denesha had no indication that his new supervisors were dissatisfied with his work. During his November case review with his

new dire ct supervisor, Joe Wilfong, Denesha was not informed of any complaints

. Wilfong did tell Denesha, however, that “younger employees [are] running circle s around older employees.” (Tr. at 1216.) Wilfong repeated this view during Denesha’s December

1992 case review and to another FCR, Vyck Shanes. When Wilfong later told White that “he had used a poor choice of words,” White suggested tha t in the future he use the term “newer” employees instead of “younger.” (Tr. at 797-99.) At a meeting in the spring of 1993, White stated that the only way to improve things would be to get rid of the “old heads” around the office.

Other evidence also suggested that White and Wilfong treated Denesha in a disparate manner. For examp le, Denesha was placed on progressive discipline in June 1993 even though his performance was comparable to that of other FCRs and despite 5 the fact that he led the office in reduction of bodily injury (“BI”) costs. Additionally, Denesha received more assignments than other FCRs. Both Wh ite and Wilfong refused to review records Denesha had compiled that showed his caseload to be significantly higher than other FCRs. White dismissed these complain ts as “bogus” and the product 6st atus reports, Wilfong demanded that Denesha bring his up to current by June 14 ,

1993. Both Moody and Shanes testified on di rect that Denesha was treated differently with respect to the status reports.

9 of a “chronic complainer.” When Wilfong began recording complaint s in January 1993, he told Denesha that he was recording complaints received about a ll employees and that he should not let it bother him. The youn ger CRs testified, however, that they received verbal w arnings before their supervisors recorded complaints made against them

. Wilfong also failed to do a field “ride along” with Denesha during the eleven months that he supervised him. The “ri de along” is intended to improve the efficiency of CRs, and it is company polic y to do a minimum of one per quarter, more if the CR is having problems. White admitted that he would be “shocked” to learn that a supervisor failed to do the “ride along.” Wilfong did ride along with other employees an d testified at trial that he consciously deci ded not to follow procedures with Denesha because he did not think it would help him.

After placing Denesha on formal discipline, Wilfong created goals for Denesha that were unattainabl e as measured by the accomplishments of other employees. Both White and Terry Lee, Farmers’ Regional Liability Claims Manager, testified that i t would be unreasonable to expect an FCR to settle more than 100 BI units in a month. In August 1994 White wrote to FCR Shanes to congratulate him on sett ling 158 BI units in a six-month period, and White testified that during the summer of 1993 anything more than thirty units in a month would have been satisfa ctory. Nonetheless, Denesha would have had to complete over 100 units in July 1993 to achieve the goal Wilfong set fo r him. This goal was in addition to catching up on all his status reports, a requiremen t that other CRs were given extra time to achieve .
At a September 1993 meeting, Wilfong told Denesha that his p robationary period would end on October 7 and that his performance would be reviewed at that time

. During September, Denesha settled the most bodily injury units in the Kansas City10

BCO. Nonetheless, he was demoted on October 7, 1993 to an entry level OC R position. White i ndicated that he did not respect the OCR position and that he did not intend to continue it. In addition to handling property damage claims and subrogation files as an OCR, Denesha continued to handle most of his remaining bodily injury files. On November 15 , 1993, the subrogation and bodily injury files were taken away from Denesha, and on November 24, 1993, he again was placed on formal discipline. White characteri zed the workload at the Kansas City BCO during this entire time period a s “horrendous.” Nonetheless, a regional auditor observed in Marc h of 1994 that Denesha had made 24-hour contact with claimants 100% of the time. This finding conflicte d with the claims of White and Wilfong, who characterized Denesha as consisten tly below the required 90% goal for 24-hour contact. These facts support the jury’s conclusion that Farmers’ actions were the product of discriminatory animus with respect t o Denesha’s age.

Fa rmers next argues that regardless of what happened during Denesha’s tenure

as an FCR, the company cannot be held liable for discharging Denesha based on hi s work performance as an OCR. Farmers would have us treat each alleged discriminatory act as an isolated event to be kept distinct from each other unlawful act. Such a n argumen t finds no support in our precedent. The district court correctly stated that a jury in assessing whether an employer’s proffered reasons for the adverse employment action constitute pretext and whether there was intentional discrimination may consider the emp loyer’s conduct throughout the employee’s tenure with the company. Se e Denesha , 976 F. Supp. at 1285 (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 804 (1973)); see also Hindman v. Transkrit Corp. , 145 F.3d 986, 993 n.2 6 (8th Cir. 1998) (three-year-old statements, even if not themselves actionable, may be relevant as background evidence in proving ultimate issue of age discrimination); Hardin v

. Huss man Corp. , 45 F.3d 262, 266 (8th Cir. 1995) (statements remote in time can b e used t o meet “additional showing” requirement); Clements v. General Accident Ins

. Co. , 821 F.2d 489, 492 ( 8th Cir. 1987) (statements remote in time relevant to showing of general intent or inclination to discriminate).11

Far mers’ argument that Denesha could not create an inference of discrimination b y rais ing issues stemming from his work as an FCR confuses relevance with direc t causation. See Neufeld v. Searle Lab. , 884 F.2d 335, 340 (8th Cir. 1989).

Here, howeve r, Denesha was not limited to using the statements as background evidence. It is well settled that a plaintiff can meet his burden of proving intentiona l discrimi nation by providing evidence of remarks by decision makers reflecting a disc riminatory attitude. See White v. Honeywell , 141 F.3d 1270, 1275-76 (8th Cir

. 1998); Madel v. FCI Marketing, Inc. , 116 F.3d 1247, 1252 (8th Cir. 1997); Beshears

v. Asbill , 930 F.2d 1348, 1354 (8th Cir. 1991). While it is true that prior evaluations estab lishing competent performance “do not render more recent negative evaluation s inherently unt

rustworthy,” Rose-Maston v. NME Hospitals, Inc. , 1998 WL 11051, at *4 (8th Cir. 1998), direct evidence of discriminatory animus on the part of decisio n makers i s relevant not only to the issue of pretext but may itself form the basis for a finding of intentional discrimination. See Madel v. FCI Marketin g, Inc. , 116 F.3d 1247, 1252 (8th Cir. 1997) (use of age-based epithets by sales manag er sufficient to constitute evidence of discriminatory intent); Williams v. Valentec Kisco, Inc. , 964 F.2d 723, 728 (8th Cir. 1992) (comment of shop foreman asking supervisor why he had an “old man carrying the bo xes” constitutes direct evidence in support of jury’s finding of pretext).

Both Wil fong’s statements that the “younger employees were running circle s around the olde r employees” and White’s assertions that the office needed to rid itself of “old heads” occurred contemporaneously with events that form the basis of thi s litigation. Wilfong made his statements on several occa sions near the time that Farmers denied Denesha’s raise in December 1992. White made his statements in June 1993, at approximately the same time that plaintiff was placed on formal warning after White characterized him as a “chronic complainer” due to his attempts to receive a workload comparabl e to other employees. “As the Supreme Court has noted, ‘[i]t is the ver y essence of age discrimination for an older employee to be fired because the employer12

believes that productivity and compete nce decline with old age.’” Parrish v. Immanuel Med. Ct r. , 92 F.3d 727, 733-34 (quoting Hazen Paper Co. v. Biggins , 507 U.S. 604 , 610 (1 993)). A reasonable jury could conclude from these facts that White an d Wilfong’s decisions regardi ng Denesha were informed by a discriminatory animus and that the ir workload and disciplinary decisions concerning Denesha were designed t o elicit failure.
Similarly, Farmers’ effort to characteriz e the comments of White and Wilfong as “stray remarks,” “statements by nondecisionmakers,” or “statements by decisio n makers unrelated to the decisional process” lacks persuasive force. See Pric e Waterhouse v. Hopkins , 490 U.S. 228, 277 (1989) (O’Connor, J., concurring); see also Bes hears v. Asbill , 930 F.2d 1348, 1354 (8th Cir. 1991) (adopting O’Connor’ s distinct ion between comments that demonstrate a discriminatory animus and stray o r nondec isional remarks). Because Wilfong’s and White’s remarks concerning th e performance of older employees were made during the same period as their decisions impacting Denesha’s workload and job security, “[a] re asonable person could infer . . . that [ the ultimate decision] to terminate [p]laintiff[] was based on age.” Madel , 11 6 F.3d at 1252.
Farmers next argues that the record lacks substantial evidence establishing that its re asons for denying Denesha’s 1992 raise rose to the level of intentional ag e discrimination . We disagree. To make his prima facie case, Denesha was required to show that he w as a member of a protected group, he qualified for the raise, despit e qualifying he was denied the raise, and other employees of similar qualifications who were not members of the protected group i n fact received raises. See Winbush v. State of I owa , 66 F.3d 1471, 1479 n.13 (8th Cir. 1995). Denesha was over forty, hi s supervisor

submitted a highly complimentary review that was later altered by hi s manager on the basis of irrelevant and perhaps contrived infor mation, he was denied the raise, and all ot

her employee except one other individual over the age of fifty received raises. This showing, coupled with direct evidence of White’s discriminatoryOur d etermination supra to reinstate punitive damages obviates any need, a t 7 least on th e facts of this case, of addressing liquidated damages. Cf. Nelson , 26 F.3d at 803 n.1.

13 bias, amply supported

the jury’s determination that the denial of Denesha’s 1992 raise was due to intentional age discrimination. See id. at 1479.

B. Damages

Th e court awarded Denesha $416,801.64 in overall damages, comprised o f $102,614 eac h in compensatory and liquidated damages, $61,666.67 in front pay, and $149,906.97 in attorneys fees and expenses. Farmers chall enges the award of attorneys fees and front pay. Denesha on cross-app eal challenges the district court’s calculation 7 of front pay and revocation of punitive damages.
1. Award of Attorneys Fees

Due to its unique understanding of and exposure to proceedings before it, th e district court retains di scretion in determining attorneys fees. See Delph v. Dr. Pepper Bottling Co. , 130 F.3d 3 49, 358 (8th Cir. 1997). The district court awarded plaintiff’s lead tr ial attorneys $170 per hour in fees. Farmers complains that this is a n unreasonable award as it is co nsiderably higher than the rate charged by Farmers’ own counsel. The record indicates, however, that the charges are consistent with rates in the Kansas City market, and that the fees charged by Farmers’ attorneys are below market rate. See Denesha , 976 F. Supp. at 1290-9 1; see also Roche v. City of Normandy , 566 F. Supp. 37, 41 (E.D. Mo. 1983) (customary hourly charge is one factor to b e considered in calculating fees). The record also indicates that th e district court carefully reviewed the statements and billings of Denesha’s attorneys, even in one instanc e eliminating apparently unrelated charges. Given the care with which the cour t apparently considered the issue, we find no indication of abuse of discretion.The district court noted that plaintiff does not actively seek reinstatement and 8 defendant d oes not “seriously suggest” that reinstatement would be appropriate. The
co urt also found that given the level of animosity between the parties, reinstatemen t would not be an appropriate remedy. We agree with this determination.

14 2. Award of Front Pay
Farmers challenges the award of front pay. On cross-appeal, Denesha a rgues that the dist rict court abused its discretion in reducing the award for front pay based on a finding of failure to mitigate damages. We affirm the district court.

Under the ADEA the district court must tailor its remedy to make the injure d party whole. Brooks v. Woodline Motor Freight, Inc. , 852 F.2d 1061, 1065 (8th Cir. 1988). Front pay is an equitable re medy that in limited circumstances may be awarded in lieu of re instatement, as where there is such hostility between the parties that “ a prod uctive and amicable working relationship would be impossible.” Id. (quotin g 8 EEOC. v. Prudential Fed. Sav. & Loan Ass’n , 763 F.2d 1166, 1172 (10 th Cir.); see also Wi lliams v. Valentec Kisco, Inc. , 964 F.2d 723, 730 (8th Cir. 1992). The amount o f front pay is an equitable matter to be determined by the court. Se e Newhouse , 110 F.3d at 642-43. In calculating front pay, the court has “the discretion to consider all th e circ umstances involved in determining appropriate equitable relief.” Curtis v

. Electronics & Space Corp. , 113 F.3d 1498, 1504 (8th Cir. 1997). We review for abuse of discretion. Id.

“A successful ADEA plaintiff must show that he or she attempted to mitigat e damages or face a reduction in the damage award.” Newhouse , 110 F.3d at 641. This duty requires that the plaintiff use reasonable diligence in finding suitable employment and not refuse a position substantially equivalent to the one at issue. See id. (citations omitted). The defendant bears the burden of showing that there were suitable positionsWhile an unemployed litigant need not “go into another line of work, accept a 9 demotion, or take a demeaning position,” Ford Motor Co. v. E EOC , 458 U.S. 219, 231 (1982), he also may not abandon his efforts “in the face of his difficulties,” Payne v. Security Sav. & Loan Ass’n F.A. , 924 F.2d 109, 111 (7th Cir. 1991).

15 and that the plaintiff failed to use reasonable care in seeking them. See Kehoe v

. Anheuser-Busch, Inc. , 96 F.3d 1095, 1106 (8th Cir. 1996).

For a peri od of six months following plaintiff’s dismissal in May 1994 h e attempted without success to find a job in the insurance industry. After six months , Denesha determined that he needed to replace his lost income and obtained part-time employme nt

demonstrating magic toys at a toy store and as a substitute teacher

. Denesha did not apply for ano ther job in the insurance industry until two weeks before the front-pay hearing in September 1997. Thus, over a period of thirty-three months, during which he was employed part-time, Denesha made only a single application for employm ent in his area of expertise. At the front-pay hearing, the district court found credible the expert evidence presented by Farmers that there were a number of different positions that Denesha could have tried to obtain. While the requirement of mitigating 9 damage s “is not onerous and does not require success,” Brooks v. Woodline Moto r Freight, Inc

. , 852 F.2d 1061, 1065 (8th Cir. 1988), the duty does require that th e plaintiff exercise reasonable diligence, see Newhouse , 110 F.3d at 641. We sympathize with t he frustrations faced by a plaintiff in his late fifties seeking work at a leve l comparable to his previous position with defendant. We cannot conclude, however, that the distri ct court abused its discretion by finding that Denesha failed to make a n “honest, good faith effort” to minimize his damag es by obtaining full-time employment. Brooks , 852 F.2d at 1065; see also Payne , 924 F.2d at 111. Though attempts to find work do not have to rise to the level of ambition exhibited by the plaintiff in Brooks , a plaintiff must make some sustained minimal at tempt to obtain comparable employment. See 8 52 F.2d at 1065. Denesha failed to make such an attempt. We therefore agre e with the district court that an amount equal to what16

Denesha would have earned if he had made reasonable mitigation efforts was properly subtracted from his award. See Cassino v. Reichold Chems., In c. , 817 F.2d 1338, 1345 (9th Cir. 1987).
3. Punitive Damages

Denes ha argues that the district court erred by granting Farmers’ motion fo r judgmen t as a matter of law as to the jury’s award under the MHRA of $4 million i n punitive dam ages. While we conclude that $4 million constitutes an excessive award

on these facts, we agree with Denesha that a reasonable juror could determine tha t Farmers’ actions support punitive damages.

The distr ict court can set aside the jury’s verdict only if, upon viewing th e evidence in a light most favorable to the prevailing party, it concludes th at no reasonable ju ror could have returned a verdict in favor of the nonmoving party. See Ricketts v

. City of Columbia , 36 F.3d 775, 778 (8th Cir. 1994). We apply the same standard that governed the district court. See id. In granting judgment as a matter of law in favor of Farm ers, the district court noted that “[t]he issue of liability was extremely close-

- another jury could have found that age was not the determining factor in defendant’ s decisio n to terminate plaintiff.” 976 F. Supp. at 1288. While both sides may hav e presented strong cases, the correct standard in reviewing a jury’s verdict is to consider the evidence in the light most favorable to the plaintiff, s ee Ricketts , 36 F.3d at 778, not what might have been, see Ryther , 108 F.3d at 845 (quoting Forbes v. Arkansas Educ. Television Comm. , 93 F.3d 497, 501 (8th Cir. 1996), rev’d on different grounds , 118 S. Ct . 1633 (1998)) (“We do not know what our answer would have been if we ha d been sitting on the jury, but that is not important. There was conflicting evidence on this issue, and it could have gone either way. Making decisions of this kind is exactly what juries are for.”). Considering the facts in a light most favorableIn add ition, the cases relied upon by the district court in determining tha t 10 punitive damages were inap propriate are not as factually analogous to the instant case as are other recent dec isions. Neither Nelson v. Boatmen’s Bancshares, Inc. , 26 F.3d 796 (8th Cir. 1994), or Glover v. McDonnell Douglas Corp. , 981 F.2d 388, 396 (8th Cir. 1992), involved any direct evidence of discri mination by key decision makers. By contrast, in Kimzey v. Wal-Mart Stores, Inc. , 107 F.3d 568, 575-76 (8th Cir. 1997) , th e court upheld an award of punitive damages where a company ignored complaints and failed to follow policy in response to verbal sexual harassment. Similarly, i n Kientzy v. McDonnell D ouglas Corp. , 990 F.2d 1051, 1062 (8th Cir. 1992), the court awarded punitive damages where a supervisor had discipli ned a female employee more harshly than a male employee. See also Varner v. National Super Mkts., Inc. , 94 F.3d 1209, 1214 (8th Cir. 1996) (denying punitive damage where no decision maker s participated in the illegal conduct).

17 to Denesha, we cannot agree that no r easonable juror would be able to render a verdict for Denesha on the issue of punitive damages. 10

Under Missouri law, “‘[p]unitive damages may be awarded for conduct that i s outrageous, because of the defendant’s evil mo tive or reckless indifference to the rights of others.’” Burnett v. Griffith , 769 S.W.2d 780, 789 (Mo. 1989) (en banc) (quoting Resta tement

( Second ) of Torts § 908(2) (1979)). Unlike the willfulness standard fo r liquidated damages specified under the ADEA, see Hazen Paper Co. v. Biggins , 113 S. Ct. 1701, 1708-10 (1993), punitive damages issue under the MHRA only upon a finding of som e element of outrage, see Burnett , 769 S.W.2d at 789. “The requisite level o f recklessness or outrageousness can be inferred from management’s participation in the discriminatory conduct.” Kimzey v. Wal-Mart Stores, Inc. , 107 F.3d 568, 575 (8th Cir. 1997).

The twin policy objectives of punitive damages are punishment and deterrence. See EEOC v. HBE Corp. , 135 F.3d 543, 556 (8th Cir. 1998) (citing Call v. Heard , 925 S.W .2d 840, 848 (Mo. 1996) (citing Pacific Mutual Life Ins. Co. v. Haslip , 499 U.S. 1, 19 (1991))). The amount of punitive damages awarded under the MHRA shouldT he parties do not contest the jury instructions as to the issue of punitiv e 11 damages.

18 reflect this purpose of punishment and deterrence, taki ng into account additional factors such as the severity of the defendant’s misconduct, the presence of aggravating o r mitigat ing factors, and the financial situation of the defendant. See HBE Corp. , 13 5 F.3d at 556 (citing Call , 925 S.W.2d at 848-49 (citing Pacific Mutual Life Ins. Co. v. Haslip , 499 U.S. 1, 19 (1991)). Considering the evidence in the light most favorable to Denesha, ther e was sufficient evidence of outrageousness to permit a reasonable juror to award punitive damages. As in Kimzey , management participated directly in th e 11 discriminatory conduct. See 107 F.3d at 575. Wilfong, Denesha’s direct supervisor,

on several occasions stated that the work of older employees was inferior to younge r employees. Though these statements w ere brought to the attention of White, the office manager, he failed to take the matter seriously, instead advisi ng Wilfong to use different language in the future. In addition, Farmers failed to address EEOC complaints file d by De nesha in January 1993 following a meeting between himself and the head of the personnel department regarding the denial of a rais e and again in May 1993 after White refused to examin e statistics showing that his workload was unfair, despite an audit of the statistics used by Wilfong contradicting his perception of plaintiff’s performance

. There was also evidence t o support a determination that White and Wilfong held older emplo yees to different standards than younger employees. Deliberately restrictin g opportunities and rewards based on age is a violation of the law. It is precisely these type of attitudes and actions that punitive damages are designed to deter. In sum, the actions of White and Wi lfong permit an inference of discriminatory animus on the part of key decision makers, thus establishing the quantum of outrageousness necessary to support an award of punitive damages. See Kimzey , 107 F.3d at 575.
Having concluded that punitive damages ar e appropriate, we turn to the question of whether the $4 million award exceeded what was fair and reasonable. Though the19

MHRA does not place a cap on damages, $4 million exceeds other awards upheld under Missou ri law. See HBE Corp. , 135 F.3d at 556-57. Missouri law provides fo r remittitur when a jury’s punitive damages award exceeds what is fair and reasonable,

see Mo. Ann. Stat. § 537.068(b) (West 1998), thus permitting the court to potentially obviate further consumption of judicial resources by giving the plaintiff a choic e between a new trial and an award, see Hetzel v. Prince William County , 118 S. Ct

. 1210, 1211-12 (1998) (holding that the practice of granti ng remittitur without giving the plai ntiff the option of a new trial ‘cannot be squared with the Seventh Amendment’)

. While there is no precise mathematical formula for determining punitive damages, see Finle y v. Empiregas, Inc. , 975 F.2d 467, 472 (8th Cir. 1992); Pacific Mutual Life Ins. Co. v. Haslip , 499 U.S. 1, 18 (1991), considerations of due process, relation to prio r awards under Missouri law, and the nature and extent of the pl aintiff’s injuries convince

us that remittitur in the amount of $700,000 more properly vindicates the polic y objectives at

issue. See Call , 925 S.W.2d at 848-49 (stating that a non-exhaustive list of co nsiderations in assessing award of punitive damages includes severity o f miscon duct, aggravating or mitigating circumstances, and finances of the defendant) ; Moore v. Missouri-Nebraska Express, Inc. , 892 S.W.2d 696, 713-14 (Mo. App. W.D. 1994) (applying same factors in determining proper amount of remittitur). As an init ial matter, the 24:1 ratio of punitive to compensatory damages is no t unsettlin g as a matter of due process. See BMW of North America, Inc. v. Gore , 517 U.S. 559, 581-86 (1996) (striking a 500:1 punitive damages award as violative of the Due Process Clause of the Fourteenth Amendment). Cf. id. at 581-82 (citing Haslip , whi ch described a 4:1 punitive to compensatory ratio as close to the line, bu t emphatically rejecting any

categorical approach); Kimzey , 107 F.3d 577-78 (reducing punitive damages from a 100:1 to a 10:1 punitive to co mpensatory ratio). Similarly, the ratio of puni tive damages to net worth is not unduly low when calculated according to Farmers’ surplus. See HBE Corp , 135 F.3 d at 556 (describing a punitive award of five percent of the corporation’s net worth as “very h igh”). Farmers’ surplus--the insurance industry equivalent t o net worth--was $1.64 billion at the time of trial. However, state20

regulations re quire the company to retain a minimum surplus of $1.5 billion. Denesha conced es that when characterizing the remaining $140 million in “excess surplus” a s “net worth ,” which would yield a punitive damages award equal to 3 1⁄2 percent of net worth upon the jury’s award, may result in an excessive award under the app roach taken in HBE Corp. In order to avoid the question of whether this constitut es an unreasonable award, Denesha would have us reduce the a ward to an amount equal to one-half of one percent of Farmers’ net worth, understood in ter ms of excess surplus. While we follow th e Supreme Court in rejecting this or any other categorical approach to determinin g punitive damages, see BMW , 571 U.S. at 581-8 2, we agree that $700,000--the product of this calculus--represents an appropriate award under the circumstances.

Consideration of “the nature and extent of the misconduct, [and] the impact on the in dividual plaintiff[],” reinforces our conviction that a $4 million verdict i s excessive. See HBE Corp. , 135 F.3d at 55 6. Farmers’ management altered Denesha’s salary review, relying on undocumented and uncorroborated complaints to justify denial of a raise and contemporaneously expressed the opinion that the performance of older work ers was inferior. Subsequently, the same management also ignored EEO C compl aints and treated Denesha in a manner different from that enjoyed by younge r employees. While reiterating that the goal of punitive damages is to punish Farmers and create a disincentive against recidivism, we conclude that the nature and extent of the conduct does not support the jury’s award. Keep ing sight of those same objectives, we also conclu de that the effect on Denesha does not warrant an award of $4 million

. Though the record in dicates an expected strong emotional response on Denesha’s part to being denied

a raise and ultimately fired, the harm suffered by plaintiff is more than ad equately offset by the combined awards of compensatory and remitted punitiv e dam ages. Finally, remittitur in the amount of $700,000 also brings the award in lin e with our prior decisions. See Kientzy , 990 F.2d at 1062 ($400,000 award affirmed) ; HBE Corp. , 135 F.3d at 557 (reducing award from $4.8 million to $480,000).21

Accor dingly, we vacate the district court’s order on punitive damages and remand for a new trial on that issue only unless Denesha agrees to an award of $700,000.

C. “Willfulness” of ADEA Violation

Farmers contends that the district court committed clear error by sustaining the jury’s finding that Farmers violation of the ADEA was “willful.” The district cour t

conc luded on this basis that plaintiff was entitled to $102,614 in liquidated damages

. See 29 U.S.C. § 626(b) (providing for liquidated damages in an amount equal to th e compensatory damages awarded by the jury). Denes ha apparently conceded before the district court that punitive damages under the MH RA and liquidated damages under the ADEA are mutually exclusive, while arguing that he was entitled to the greater of the tw o amounts. See Denesha , 976 F. Supp. at 1287. Given our decision to reinstat e punitive damages with remittitur of $700,000--an amount larger than the liquidate d damages award--we need not reach the issue of whether defendant’s violation wa s “willful.” Cf. Nelson , 26 F.3d at 803 n.1

D. Farmers’ Motion for a New Trial

Farm ers also argues that a new trial is warranted because of error in the jur y instructions and in order to prevent a miscarriage of justice. We review the denial of a motion for a new trial for abuse of discretion. See Nelson , 26 F.3d at 800. We have considered Farmers’ arguments and find no abuse of discretion by the district court

. Therefore, the denial of Farmers’ motion for a new trial is affirmed.
E. Remaining Issues

We have carefully reviewed the remaining issues raised by the parties an d conclude that they are without merit.22 III.

For t he reasons stated above, we affirm the district court’s order denyin g Farmers’ motion for judgment as a matter of law or a new trial and affirm the district court’s award of $102,614 in compensatory damages and $61,666.67 in front pay. We also a ffirm the district court’s order with respect to attorneys fees and costs, excep t insofar as such award fails to reflect Denesha’s fees and costs incurred in post-tria l arguments on the issue of punitive damages. We reverse, however, the district court’s decision to set aside punitive damages, and remand to the distri ct court with instructions to s ubmit to Denesha remittitur in the amount of $700,000, with the option of a ne w trial on the issue of punitive damages only, and for further proceedings not inconsistent wi th this opinion, including recalculation of attorneys fees and costs in light of thi s decision.

A true copy.

Attest.

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