1

 The Honorable Robert T. Dawson, United States District Judge for the

Western District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 97-4122/98-1081EM

__________

Rockwood Bank, *

 *

 Defendant-Appellant/Cross-Appellee, *

 * Appeal from the United States

v. * District Court for the Eastern

 * District of Missouri

M. Michael Gaia, *

 *

Plaintiff-Appellee/Cross-Appellant. *

___________

Submitted: November 16, 1998

Filed: March 15, 1999

___________

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON1, District

Judge.

___________

DAWSON, District Judge.

Rockwood Bank appeals following a judgment in a defamation action brought

by a bank employee after the president of the bank made certain statements about the

employee to bank examiners during routine bank examinations. The employee, M.
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Michael Gaia, who had been demoted by the bank, sought other employment and was

listed as the proposed president within the charter application forms for a new bank.

Because of the comments made by the president that were contained within the

reports of bank examiners, the Missouri Commissioner of Finance refused to grant

the new bank charter as long as Gaia was listed as president. Gaia filed suit for age

discrimination and defamation; a jury found for the bank on the discrimination claim

but awarded Gaia actual and punitive damages on the slander claim.

For reversal, Rockwood Bank contends that because of the very nature of bank

examinations, its communications with bank examiners are protected by either an

absolute or qualified privilege entitling the bank to immunity from civil liability.

Rockwood Bank also contends that the communications were not defamatory. For

reversal on the cross-appeal, Gaia contends that the district court’s instructions to the

jury on the issues of illegal age discrimination were not correct statements of the law.

We reject the contentions of both and AFFIRM the decision of the district court.

Jurisdiction of this court is proper under the provisions of 28 U.S.C. §§

636(c)(3), 1291 and 1294.

I. Factual Background

In March, 1992, the Board of Directors of Rockwood Bank voted to hire Gaia

as executive vice president of the bank over the objections of the bank president. At

the time Gaia was hired, he was fifty-five years old and had twenty-one years of

experience as a bank officer and fifteen of experience as a bank president. Gaia was

considerably older and more experienced than the acting president of Rockwood

Bank. According to Gaia, the bank president told him that he had wanted to hire

someone younger and less experienced than Gaia because such a person would have

been easier to train. From the beginning of their professional relationship, tensions

existed between the bank president and Gaia, with the bank president continually

criticizing and expressing dissatisfaction with Gaia’s performance. The record
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contains evidence that the bank president did not provide Gaia with a specific job

description or duties and responsibilities; that he instructed Gaia to perform clerical

tasks not typically assigned to senior level executives and failed to provide him with

training; and that he directed Gaia not to perform other clerical tasks which Gaia

deemed necessary to process customers’ business. In addition, Gaia’s personnel file

was filled with memoranda and notes regarding his performance and his file was

shown to be much more detailed and extensive than the file of any other bank

employee. Despite the frequent fault-finding by the bank president, Rockwood’s

Board of Directors appeared satisfied with Gaia’s performance and granted him salary

and benefit increases and stock options every year that Gaia served as executive vicepresident. 

In September 1994, the bank president was able to convince the Board that

Gaia was not fulfilling his duties in an acceptable manner. Despite Gaia’s attempts

to defend himself and persuade the Board that he was being wrongly disparaged by

the bank president, the Board gave Gaia an ultimatum either to accept a demotion or

be terminated. Gaia agreed to the demotion. However, the working relationship

between Gaia and the bank president remained strained and Gaia eventually came to

believe that his days at Rockwood Bank were numbered. In the summer of 1995,

Gaia began looking for other employment. During this time, Gaia was approached

by a group of investors who were organizing a new bank about the possibility of

naming Gaia as the president of the new bank. In due course, Gaia was listed as the

proposed president of the new bank seeking to organize under a state banking

charter.

At or about the time of Gaia's demotion, routine bank examinations were

conducted by the FDIC and Missouri Division of Finance. During the course of these

examinations, the bank examiners discussed with Rockwood’s president the job

performance of Gaia and other employees. While the bank president’s comments

were contained within the confidential section of both reports, they were not included
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in the reports of examination made available to the bank, its board, the president, or

Gaia. The comments were contained in the full reports of both examinations, and it

was the full reports that the Missouri Bank Commission reviewed in connection with

the application for the new bank charter which proposed Gaia as its president.

The language concerning Gaia in the report of the FDIC examination that was

conducted in June 1995 was as follows, to-wit:

The minutes of a Personnel Committee meeting on May 25, 1995,

disclosed that President Lunt was recommending that Vice President

Mike Gaia be fired. When questioned, President Lunt stated that Mr.

Gia [sic] had not lived up to expectations since his employment. Mr.

Lunt felt he would have the Board's support in this matter and hoped to

be able to interview shortly for an Executive Officer who would

effectively take Mr. Gaia's place.

The language within the report of the Missouri Division of Finance

examination conducted in January 1995 was similar and was as follows, to-wit:

Mike Gaia has been demoted from Executive Vice President to Vice

President. His primary responsibility is now business development. His

efforts to complete assigned tasks such as policy revisions and

implementation of the loan grading system have failed. President Lunt

appeared very displeased with Mr. Gaia's weak performance and stated

that he has an indefinite probationary period to produce results. In

addition, President Lunt stated that he has created much animosity

among the Board of Directors.

Based largely upon these confidential comments, the Missouri Bank

Commission reached a decision and advised the directors of the newly formed bank

that their charter would be approved only if Gaia was not president. Gaia was then

offered a lesser position with the new bank. On or about December 8, 1995, Gaia left

his employment at Rockwood Bank and a few weeks later took the lesser position
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offered at the new bank. Gaia contends that Rockwood’s president fired him without

the approval of the Board of Directors, while Rockwood contends that Gaia resigned

to accept the offer of other employment.

 

The litigation by Gaia was filed following the commencement of his

employment at the newly formed bank. With regard to the claim of age

discrimination, the issues of pretext concerning the bank’s proffered explanation for

Gaia’s demotion and whether Gaia voluntarily resigned or was discharged from his

position at Rockwood Bank were thoroughly litigated. At the close of evidence, the

district court gave the following instruction to the jury:

Plaintiff must prove by a preponderance of the evidence that his age was

the determining factor in the Defendant’s decisions to demote and

discharge him. Age is the determining factor if Plaintiff would not have

been demoted and discharged except for his age.

The jury returned a verdict in favor of Rockwood Bank on Gaia’s age discrimination

claims and in favor of Gaia on the defamation claim. The jury awarded Gaia

$200,000 in actual damages and $75,000 in punitive damages upon making a finding

of actual malice.

 

II. Discussion 

A. Absolute or Qualified Immunity from Liability

The first issue the Court shall address is whether any privilege exists that

would shield a bank, its officers or board members from civil liability for allegedly

defamatory comments made to bank examiners during the course of a routine

examination of the bank. Rockwood Bank contends that the district court erred when

it failed to recognize that the bank is entitled to immunity from liability for statements

made to bank examiners in the course of routine bank examinations because those

statements are protected by either an absolute or qualified privilege. This is a case
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of first impression, and amicus briefs have been filed by the Missouri Commissioner

of Finance, the Missouri Bankers Association, and the Federal Deposit Insurance

Corporation, who argue that public policy must allow full and complete comment and

disclosure in connection with any bank examination without fear of litigation.

Although there are some federal implications because of the involvement of the

Federal Deposit Insurance Corporation (FDIC), Missouri law governs Gaia’s slander

claim against Rockwood as well as the claim of absolute or qualified privilege for the

statements made by Rockwood’s president to the Missouri Division of Finance. In

re IBP Confidential Bus. Documents Litigation, 797 F.2d 632, 639 (8th Cir.

1986)(citing Webster v. Sun Co., 790 F.2d 157, 160 (D.C.Cir. 1986)). Whether a

statement is absolutely privileged is a question of law which we review de novo.

Scott Fetzer Company v. Williamson, 101 F.3d 549, 553 (8th Cir. 1996); Wright v.

Over-The-Road & City Transfer Drivers, Helpers, Dockmen and Warehousemen, 945

S.W.2d 481, 490 (Mo.App. 1997). 

Missouri courts adhere to the common law principle that "statements made

during the proceedings of a judicial or quasi-judicial body are absolutely privileged

if they are relevant to the issues before the body." Remington v. Wal-Mart Stores,

Inc., 817 S.W.2d 571, 574 (Mo.App. 1991)(citations omitted); see also Hester v.

Barnett, 723 S.W.2d 544 (Mo.App. 1987); Pulliam v. Bond, 406 S.W.2d 635 (Mo.

1966). Absolute immunity for participants in a judicial or quasi-judicial process is

"necessary to assure that judges, advocates, and witnesses can perform their

respective functions without harassment or intimidation." Butz v. Economou, 438

U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978). The question, therefore,

becomes whether routine bank examinations may be considered judicial or quasijudicial proceedings entitling participants to absolute immunity. In reaching a

determination of this issue, it is appropriate to inquire into the characteristics of the

particular examinations that took place at Rockwood Bank to see if they were typical

of the judicial process in order to warrant absolute immunity for those who took part
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in them.

In determining if a particular proceeding is quasi-judicial in nature, Missouri

courts are guided by whether the administrative agency exercised "such traditional

judicial powers as the conducting of hearings at which witnesses may be summoned

and examined, documents subpoenaed, and judgments handed down . . ." Wright, Id.

at 491, quoting Remington, Id. at 574 (citations omitted). We have previously held

that the term "quasi judicial" applies "where the function of the administrative body

under consideration involves the exercise of discretion in the application of legal

principles to varying factual situations and requires notice and hearing." M.C. Mock

v. Chicago, Rock Island and Pacific Railroad Co., 454 F.2d 131,134 (8th Cir. 1972).

 In Butz, the Supreme Court noted that "the safeguards built into the judicial process

tend to reduce the need for private damages actions as a means of unconstitutional

conduct. . . .Advocates are restrained not only by their professional obligations, but

by the knowledge that their assertions will be contested by their adversaries in open

court. Jurors are carefully screened to remove all possibility of bias. Witnesses are,

of course, subject to the rigors of cross-examination and the penalty of perjury." Butz,

438 U.S. at 512, 98 S.Ct. at 2913. 

While Missouri case law recognizes the existence of absolute privilege in

some administrative proceedings, it has not extended that privilege as far as the

Appellant now seeks. In Li, et al. v. Metropolitan Life Insurance Co., Inc., 955

S.W.2d 799 (Mo. App. 1997), it was held that the allegedly defamatory contents of

a letter written by an insurance agent and provided to the Missouri Department of

Insurance pursuant to an inquiry into specific allegations of misrepresentation by the

agent was protected by absolute privilege. The court reasoned that the inquiry by the

Department constituted a quasi-judicial function because the Department was

investigating specific complaints about the agent that were brought by the appellants

themselves. 
2Mo.Rev.Stat. §§ 361.130, 160 (1994); 12 U.S.C. §§ 1818(n), 1820(c); 12

C.F.R. §§ 308.144 (1998) et seq.

3Mo.Rev.Stat. § 361.260 (1994); 12 U.S.C. § 1818(b) & (c).

4See Mo.Rev.Stat. § 361.070 (1994). The bank examination privilege is a

qualified privilege which shields from discovery agency opinions or

recommendations, and it is discussed in some detail within In Re Subpoena Served

Upon the Comptroller of the Currency, 967 F.2d 630 (D.C. Cir. 1992). In that case,

the court stated: 

Because bank supervision is relatively informal and more or less

continuous, so too must be the flow of communication between the bank

and the regulatory agency. Bank management must be open and

forthcoming in response to the inquiries of bank examiners, and the

examiners must in turn be frank in expressing their concerns about the

bank. These conditions simply could not be met as well if

communications between the bank and its regulators were not

privileged. . .

Nonetheless, the discovery of bank examination information is not

absolutely precluded. 

Id. at 634 (Citations omitted). See also, In Re Mid Atlantic Corporation Shareholder

Litigation, 1994 WL 750664, 2 (D.C. Cir. 1994). 

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We recognize that both the FDIC and the Missouri Division of Finance possess

quasi-judicial powers in that they may administer oaths, compel the attendance of

witnesses and the production of records and other documents.2 In addition, they both

have statutory authority to issue cease and desist orders.3 It is also widely accepted

that the reports prepared by the examiners are protected by law from disclosure.4

However, we are of the opinion that the routine bank examinations conducted at

Rockwood Bank in 1995 should not be accorded status as quasi-judicial proceedings.

 While the examinations were conducted according to law, they were not inquiries

instituted after a determination that the bank may have been engaging in unsafe or

unsound practices. Nor were the examinations commenced pursuant to specific

complaints or requests for investigation. There is no evidence that either of the bank

regulatory agencies was even contemplating the initiation of a quasi-judicial
5

 Following oral argument in this matter, the Appellant Rockwood Bank

submitted to the Clerk an additional citation, as is permitted by Rule 28(j) of the

Federal Rules of Appellate Procedure. Rockwood Bank contends that 31 USC

§ 5318(g)(3) affords absolute immunity to the bank in this case. Section 5318(g)(3)

is included within the "money-laundering" statutes and is designed to protect the

bank, its board of directors, officers, employees, or agents, from civil liability in

connection with the disclosure of information regarding "any suspicious transaction

relevant to a possible violation of law or regulation." The sole basis for the

defamation claim was the language contained within the examination reports. We

do not find that the record supports the argument that the bank president’s statements

were intended to disclose a suspicious transaction relevant to a possible illegality.

Therefore, this section is of no assistance to the bank under these circumstances. 

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proceeding against the bank. As such, the routine examinations of Rockwood Bank

by the Missouri Division of Finance and the FDIC may not even be considered

preliminary steps to quasi-judicial proceedings. We also think it is important to note

that the safeguards usually associated with judicial proceedings were not present

during the examinations: no hearing was noticed or held; the persons whose

comments were solicited were not under oath; and there was no opportunity for crossexamination. We hold that a routine bank examination does not qualify as a quasijudicial proceeding and that statements made in the course of such examinations are

not protected by absolute privilege.5

We do not believe that, by declining to extend absolute immunity to those who

provide statements to bank regulators during routine examinations, the free flow of

information necessary for effective bank regulation will be unduly hindered. While

the public policy concerns raised by the appellant and others are well taken and

important, they are suitably met by affording qualified immunity to the participants.

In Missouri, qualified immunity may be available for a person who makes a

statement subject to a duty to someone who has a corresponding duty. Rice v.

Hodapp, 919 S.W.2d 240, 244 (Mo. 1996); Carter v. Willert Home Products, 714
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S.W.2d 506, 513 (Mo. 1986). Qualified immunity will protect the person from

liability for making false or defamatory statements if it can be shown that the

comments were made without actual malice. Actual malice means "that the

statements were made with knowledge that they were false or with reckless disregard

for whether they were true or false at a time when defendant had serious doubts as to

whether they were true." Carter, 714 S.W.2d at 512. With this definition in mind,

those providing information to bank regulators only have a duty to refrain from

making statements that are known to be false or with reckless disregard for their

truthfulness. We find that, under these circumstances, qualified immunity will

facilitate the free flow of communications between bank regulators and those

participating in routine examinations and at the same time shield individuals from

malicious defamation. 

Rockwood Bank contends that the bank president had a legal obligation to fully

cooperate and disclose information to the bank examiners and, therefore, those

communications would be subject to a qualified immunity for claims of defamation,

citing Luan v. Union Electric Co., 166 S.W.2d 1065 (Mo. 1942). However, before

the doctrine of qualified immunity will shield the bank from liability for the allegedly

defamatory comments and responses of the bank president, it must be determined

that the bank president made the comments to the bank examiners without actual

malice. 

In this case, the jury specifically found malice on the part of Rockwood Bank.

The following instruction was given to the jury:

Instruction No. 23: If you find the issues in favor of Plaintiff, and if you

believe that Defendant made the statements, with knowledge that they

were false or with reckless disregard for whether they were true or false

at a time when Defendant had serious doubt as to whether they were

true, then in addition to any damages to which you find Plaintiff entitled

under the foregoing paragraph, you may award Plaintiff an additional
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amount as punitive damages in such sum as you believe will serve to

punish Defendant and to deter it and others from like conduct.

In Instruction No. 24, the trial court instructed the jury that:

[t]he burden is upon Plaintiff to cause you to believe by clear and

convincing evidence the propositions of fact required for the recovery

of punitive damages as submitted in . . . Instruction No. 23.

By way of response, in its verdict the jury awarded $200,000 in actual damages and

$75,000 in punitive damages.

While the instruction admittedly was directed toward the damage portion of the

plaintiff's complaint, the jury nonetheless concluded that malice was present in

connection with the comments made to the bank examiners. Since malice was found,

the comments made by the bank president to the examiners would not qualify for

qualified immunity. We find that the district court did not err by deciding that the

comments made by the bank president were not protected by absolute or qualified

privilege. Accordingly, the judgment of the district court is affirmed on this issue.

B. Evidence From Which the Jury Could Have Found Malice.

The second issue Appellant presents for appeal is whether the district court

erred by denying the appellant’s renewed motion for judgment as a matter of law. In

addition to its contention that the bank president’s comments were protected by an

absolute or qualified privilege, Appellant argues that if the comments were protected

by a qualified privilege, then there was insufficient evidence from which the jury

could have found that the comments were made with actual malice. 
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 The denial of a motion for judgment as a matter of law is subject to de novo

review by this court. Denesha v. Farmers Ins. Exchange, 161 F.3d 491, 497 (8th Cir.

1998)(citations omitted). The appellate court will not reverse a jury verdict for

insufficient evidence unless “after viewing the evidence in the light most favorable

to the verdict, it concludes that no reasonable juror could have returned a verdict for

the non-moving party". Id. Further, in reviewing a denial of a motion for judgment

as a matter of law, the court must, 1) consider the evidence in the light most favorable

to the non-moving party, 2) assume that all conflicts were resolved in favor of the

non-moving party, 3) assume as proved all facts that the non-moving party’s evidence

tended to prove, 4) give the non- moving party the benefit of all favorable inferences

that may reasonably be drawn from the proved facts, and 5) deny the motion unless

all the evidence points one way and is susceptible of no reasonable inferences

sustaining the non-moving party’s position. Denesha, 161 F.3d at 497 (citations

omitted).

 The Appellant submits that since the jury rejected Gaia’s claim that the bank

president harbored ill-will towards Gaia solely because of his age, the jury had no

factual basis for attributing any bad motives at all to the bank president. This logic

misses the point. A finding of actual malice in the context of determining whether

qualified immunity protects Rockwood Bank from liability does not necessarily

depend upon a demonstration of a motive in the form of ill-will or animosity. As

previously discussed, actual malice means that the statements were made by the bank

president when he knew them to be false or with reckless disregard for their

truthfulness at a time when he had serious doubts as to whether they were true.

Although the jury did not believe that age discrimination was the motive behind the
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defamatory comments, it was nonetheless reasonable for the jury to conclude that the

bank president made statements about Gaia’s job performance that he knew were

false or with reckless disregard for their truthfulness. Reviewing the evidence in a

light most favorable to Gaia, there was ample evidence from which the jury could

have inferred both motive and actual malice. There was evidence that Gaia was hired

over the bank president’s objections, and that he gave Gaia vague and confusing

instructions about his job duties as executive vice-president in an effort to build a

case of incompetence against Gaia. In spite of Gaia’s assertions that his job

performance was more than adequate which he supported with empirical data, the

bank president persisted in his criticisms of Gaia for not meeting expectations and

placed numerous memos and notes in Gaia’s personnel file in order to bolster the

perception of Gaia’s allegedly lackluster performance. There was no dispute that the

bank president made the comments to the bank examiners, and the jury found that

either the bank president knew he was making false statements about Gaia’s job

performance or that he acted with reckless disregard for the truth. Therefore, the

district court did not err in denying appellant’s renewed motion for judgment as a

matter of law made on the basis that there was no proof of malice.

C. Whether the Allegedly Slanderous Remarks Were Defamatory.

Appellant’s next point on appeal is that the district court erred by denying

Appellant’s motion for a new trial. We apply a deferential standard in our review of

a district court’s denial of a motion for a new trial. "‘The [district] court’s decision

will not be reversed by a court of appeals in the absence of a clear abuse of

discretion.’" Keenan v. Computer Associates Intern., Inc., 13 F.3d 1266, 1269 (8th

Cir. 1994)(citing Lowe v. E.I. DuPont de Nemours & Co., 802 F.2d 310, 310-11 (8th
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Cir. 1986)(citations omitted)). The key question is whether a new trial should have

been granted to avoid a miscarriage of justice. Keenan, 13 F.3d at 1269 (citations

omitted).

Appellant contends that the jury’s verdict was against the weight of the

evidence as the allegedly slanderous comments made by Rockwood’s president were

not defamatory as a matter of law. In Missouri, whether language is defamatory and

actionable is a question of law to be decided by the court, and the court must

determine whether a statement claimed to be slanderous is reasonably capable of

defamatory meaning. See Ampleman v. Scheweppe, 972 S.W.2d 329, 331 (Mo.App.

E.D. 1998). "In exercising this function trial and appellate courts are required ‘to

determine whether the communication reasonably conveyed the meaning ascribed to

it by plaintiff and, if so, whether the meaning was defamatory in character.’"

Ampleman, 972 S.W.2d at 331 (citing Carey v. Pulitzer Publishing Co., 859 S.W.2d

851, 855 (Mo.App.E.D. 1993).

Comments that tend to harm a person in his business or profession are one of

the traditional categories of slander per se. Carter v. Willert Home Products, Inc.,

714 S.W.2d 506, 509 (Mo. 1986). The words used by the defendant must impute to

the plaintiff a lack of knowledge, skill, capacity, or fitness to perform his duties.

Brown v. Kitterman, 443 S.W.2d 146, 154 (Mo. 1969). To be actionable, the words

"must strike at a person’s professional competence." Nazeri v. Missouri Valley

College, 860 S.W.2d 303, 311 (citation omitted). A statement that "tends to so harm

the reputation of another as to lower him in the estimation of the community or to

deter third persons from associating or dealing with him" is defamatory in character.
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Kennedy v. Jasper, 928 S.W.2d 395, 399-400 (Mo.App.E.D. 1996). We find that the

district court did not abuse its discretion in finding that the comments made by the

president of Rockwood Bank reasonably conveyed the meaning ascribed to them by

plaintiff, i.e., that Gaia lacked the knowledge, skill, capacity or fitness to perform

the duties of executive vice president. It is clear that the meaning of the words is

defamatory and actionable.

 

Rockwood claims that the court erred in denying its motion for a new trial

because some of the objectionable remarks are true, and that the others are

constitutionally protected expressions of opinion. "Whether an alleged statement is

capable of being treated as an opinion or as an assertion of fact is a question of law

for the trial court." Nazeri, 860 S.W.2d at 314. "The test to be applied to an

ostensible ‘opinion’ is whether a reasonable fact finder could conclude that the

statement implies an assertion of objective fact." Id. at 314 (citing Milkovich v.

Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1 (1990)).

The Missouri Supreme Court has also held that the "issue of falsity relates to the

defamatory facts implied by a statement--in other words, whether the underlying

statement about the plaintiff is demonstrably false." Nazeri, 860 S.W.2d at 314. We

find that the district court did not abuse its discretion in concluding that there was a

question of fact as to whether some of the statements made by the bank president

about Gaia’s job performance were true. We also find no abuse of discretion by the

district court in finding that the "opinions" offered by the bank president implied

assertions of objective fact regarding Gaia’s abilities as a bank officer.

 

Appellant next contends that the district court erred in denying its motion for
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a new trial because there was no causal link between the slanderous comments and

Gaia’s damages. There was no abuse of discretion when the district court found that

the evidence supported the jury’s determination that the decision of the Missouri

Division of Finance to approve the new bank charter only if Gaia’s name was

withdrawn as the proposed president was based upon the slanderous comments

contained in the reports of the bank examiners. Therefore, the denial of Rockwood’s

motion for a new trial is affirmed in all respects on the defamation issue. 

 

D. Appropriate Jury Instruction as to the Law on Pretext.

The sole remaining issue for determination is whether the jury was properly

instructed as to the law on pretext in the age discrimination claims brought by

Appellee Gaia. The trial court has broad discretion in instructing the jury. Cross v.

Cleaver, 142 F.3d 1059, 1067 (citing Ryther v. KARE 11, 108 F.3d 832, 846 (8th Cir.

1997)(en banc)(citations omitted)). When reviewing an instruction on appeal, the

appellate court must decide whether the instruction fairly and adequately states the

applicable law. Id. We have previously held, and do so again today, that in a

discrimination case where pretext is alleged, the plaintiff must prove that the

prohibited factor was the determining factor, not merely a determining factor, in the

adverse employment decision. See Foster v. University of Arkansas, 938 F.2d 111,

115 (8th Cir. 1991). This was not a mixed-motives case. The issue for the jury was

whether the adverse employment action was caused by the plaintiff's age or by

legitimate business factors. As we understand the record, these motives were

mutually exclusive. In addition, we note that the instruction in question carefully

advised the jury that "[a]ge is the determining factor if Plaintiff would not have been

demoted and discharged except for his age." This is a correct statement of the law.
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Accordingly, we affirm the district court’s denial of Gaia’s motion for a new trial. 

III. Conclusion

For the reasons stated above, the judgment and orders of the district court are

AFFIRMED in all respects. 

A true copy.

Attest:

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