* The Honorable Catherine D. Perry, United States District Judge for the

Eastern District of Missouri, sitting by designation. The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 the Northern District of Iowa.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________ Nos. 95-2012/2074

____________ Jin Ku Kim, *
* Appellant/Cross-appellee , *
* Appeals from the United States
v . * District Court for the
* Northern District of Iowa Nash Finch Company, *
* Appellee/Cross-appellant

. *

____________

Submitted: December 14, 1995 Filed: August 20, 1997

____________ Befor e McMILLIAN and BEAM, Circuit Judges, and PERRY, * District Judge.

____________ McMILLIAN, Circuit Judge.

Jin Ku Kim appeals from a final judgment entered in the District Court for the Northern District of Iowa , 1-2-

upon a jury verdict, finding in his favor and agains t Nash FinchCo. in his employment discrimination case but reducing the amount of damages-3-

aw arded by the jury. For reversal, Kim argues th e distric t court erred in denying his motion to amend th e pleadin gs to conform to the evidence under Fed. R. Civ

. P. 15(b) and in applying the Title VII cap, 42 U.S.C. § 1981a(b)(3 ), to limit compensatory and punitive damages. On c ross-appeal, Nash Finch argues the district cour t erred i n holding (1) Kim’s claim that he was unlawfull y deni ed a promotion from leadman to foreman in Novembe r 1990 was actionable under 42 U.S.C. § 1981, ( 2) there was sufficient evidence of intentional discrimination, (3 ) ther e was sufficient evidence of retaliation, (4) ther e
was sufficient evidence of malice or reckles s indi fference to support punitive damages, and (5) th e jury verdict awarding damages for lost wages an d compensatory damages was supported by suffici ent evidence
or, in the alternative, was not excessive. For th e
reas ons discussed below, we affirm the judgment of th e district court.

BACKGROUND FACTS

Nas h Finch is a wholesale and retail foo d distributo r. In 1978 Kim, an American citizen of Korean

ances try, began working as a grocery picker in Nas h Finc h’s Cedar Rapids warehouse. A superintendent run s the w arehouse. During the period of time at issue Bil l Mund was the warehouse superintendent. The fou r warehouse departments-- receiving, shipping, maintenance, and transportation-- are each supervised by a salarie d “foreman.” By October 1979, Kim was one of six hourl y “leadmen” who assisted the warehouse shipping foreman ; Kima lso acted as shipping foreman on Saturdays an d fill ed in when the shipping foreman was absent. Th e-4-

shipping department has 80-90 employees; the ful l shi pping crew can consist of up to 70 employees; o n Satu rdays, however, the shipping crew is smaller, abou t 25-40 employees. For more than 10 years, Kim receive d “superior” or “outstanding” annual performanc e evaluations.

The position of shipping foreman became vacant i n November 1990 and in April 1992. Kim applied for bot h vacancies, but in each instance Nash Finch promoted-5-

someone else. The individual promoted in November 199 0

was white, younger than Kim, had less than a year’ s experience as a leadman, had been trained by Kim, and had

no formal education beyond high school. The individua l promote d in April 1992 was white, younger than Kim, ha d
no t worked in the warehouse for 10 years, had bee n trained by Kim, and had no formal education beyond hig h school

. In comparison, Kim was a college graduate an d th e senior leadman in the shipping department. Nas h Finch told Kim that he had not been promoted because o f hi s inability to control costs and manhours, lack o f aggressiveness, difficulty in controlling large crews , and poor t emperament. When Kim objected to being passed over for promotion, the Nash Finch EEO compli ance officer advised Ki m to file a complaint or consult a lawyer. In May 1992 Kim filed an employment discrimination charg e against Na sh Finch with the Iowa Human Rights Commission and the Equal Employment Opportunity Commissi on, alleging Nash Finch unlawfully failed to promote him in Novembe r 1990 and in April1992 on the basis of race, nationa l origin and age.

Acco rding to Kim, immediately after he filed hi s employment discrimination charge in May 1992, Nash Finch began to systematically retaliate against him. Fo r example, Nash Finch supervisor s no longer assigned Kim to fi ll in for the shipping foreman, gave him much lowe r performance evaluations, orall y warned him about his poor “attitude” (toward management), characterized him a s unwil ling to assume more job responsibility when h e decli ned a Sunday shipping crew assignment, placed hi m under constant surveillance at work, and excluded him fro m meetings at work. Nash Finch mischaracterized a Septembe r-6-

1992 incident involving Kim and another employee a s
race- based, gave Kim a written reprimand about th e incid ent, and placed the written reprimand in Kim’ s per sonnel file. Kim alleged Nash Finch fabricated th e race basis of the incident in order to discredit him when the l ocal civil rights commission was investigating hi s (Ki m’s) employment discrimination charge. In Novembe r 1992, after another incident involving a co-worker an d another meeting with management, Nash Finch issued Kim a written reprimand about the incident. During the summer and fall of 1993, Nash Finch reviewed its warehous e operations with the-7-

assi stance of a consultant and discovered what i t regarded as productivity problems, particularly wit h resp ect to the Saturday shipping crew, which Ki m supervised, and required Kim to attend specia l retraining in or der to improve productivity on Saturdays. Ki m regarded this special retraining as punitive an d humili ating in light of his status as a leadman , seniority and experience.

Kim continues to work for Nash Finch and has not bee n discharged, demoted, reduced in compensation, o r reassigned; however, as noted above, he has r eceived oral and written reprimands and has been required to atten d special re training. Brief for Appellee/ Cross-Appellant at 1.

DISTRICT COURT PROCEEDINGS

In November 1992 Kim received a right-to-sue letter and f iled this lawsuit in federal district court. I n
coun t I Kim alleged that Nash Finch unlawfull y disc riminated against him on the basis of race, color , national origin, and age when it failed to pr omote him to the position of shipping foreman in April 1992 i n violation of Title VII of the Civil Rights Act of 196 4 (Titl e VII), as amended, 42 U.S.C. § 2000e, and the Ag e Disc rimination in Employment Act (ADEA), as amended, 2 9 U.S.C. § 621 et seq . In count II Kim alleged that Nas h Finc hunlawfully discriminated against him on the basi s of race , color, national origin, and age when it faile d to pr omote him to the position of shipping foreman i nThis claim was not barred by the two-year statute of limitations under Iow a 2 Code Ann. § 614.1( 2) (West Supp. 1997) because the failure-to-promote occurred on November 18, 1990, and the complaint was filed on November 16, 1992.
-8- November 1990 in violation of 42 U.S.C. § 1981. In coun t 2 III Kim alleged that Nash Finch unlawfully retaliate d aga inst him for filing an employment discriminatio n charge in violation of Title VII, 42 U.S.C. § 2000e-3(a). Kim sought back pay, promotion and other equitabl e relief, and compensatory and-9-

punitive damages, as well as attorney’s fees and costs , including expert witness fees. Nas h Finch filed a motion for summary judgment , asserti ng that Kim had not been promoted because he ha d
no tr ansportation experience and because of hi s rela tivelyweak management skills. The district cour t denied the motion for summary judgment and in Septembe r 1994 the case was tried to a jury. At trial Mun d test ified that he never seriously considered Kim fo r prom otion because Kim lacked personal loyalty to hi m (Mund). Kim, his wife and his son testified about ho w Kim had suffered physically and emotionally from hi s ad verse treatment by Nash Finch. Kim developed hig h bloo d pressure and headaches from stress and becam e
anx ious, withdrawn and depressed; he had difficult y sleeping and felt humiliated and ostracized at work.

In spe cial verdicts, the jury found Nash Finch ha d discri minated against Kim on the basis of race but no t age in failing to promote him to shipping foreman i n Novem ber 1990 and in April 1992, and had retaliate d against him for filing employment discriminat ion charges. The jur y awarded Kim $15,000 in lost wages and benefit s and $100,000 in non-economic damages (for emotiona l dist ress and loss of enjoyment of life) for the 199 0 promotion claim, $21,000 in lost wages and benefits an d $150 ,000 in non-economic damages for the 1992 promotio n claim, and $1.5 million in non-economic damages for th e
re taliation claim. Finally, the jury awarded Kim $ 7 mill ion in punitive damages. The special verdic t permitted the jury to award punitive damages for eithe r the 1992 promotion or the retaliation claim. Bot h parties filed post-trial motions.-10-

The district court denied Nash Finch’s motion fo r judgm ent as a matter of law or, in the alternative, fo r
new tri al, reduced the damages award, granted in par t Kim’ s motion for equitable relief (for promotion t o shipping foreman when available and front pay at the rate of $447 per month), denied Kim’s motion for prejudgmen t inte rest, granted Kim’s motion for attorney’s fees an d expenses, and entered judgment accordingly. Jin Ku Ki m v. Nash Finch Co. , No. C92-0204 (N.D. Iowa Ap r. 13, 1995)-11-

(op inion and order). The district court held th e evid ence was sufficient to support the jury’s findin g that Nash Finch had intentionally discriminated agains t Kimo n the basis of race, color or national origin whe n it failed to promote him in November 1990 and in Apri l 1992. Slip op. at 4-6. The district court a lso held the evid ence was sufficient to support the jury’s findin g that Nash Finch had retaliated against Kim for filing an

em ployment discrimination charge. Id. at 6-10. Th e district court also held that the evidence wa s sufficient to supp ort the jury’s finding that Nash Finch had acte d with malice or reckless indifference to Kim’s federall y protected right not to be retaliated against for filin g a civil rights complaint. Id. at 11-12.
As discussed below, the parties disputed whether the 1992 promotion and retaliation claims were submitte d und er both Title VII and 42 U.S.C. § 1981 or only Titl e VII. The district court found that Kim had waived an y argu ment that these claims had been brought under bot h statutes because Kim did not object to the jur y instructions and the special verdict forms whic h submitted the 1992 promotion and retaliation claims under Title VII without referring to 42 U.S.C. § 1981. Id. at 15 ( noting plaintiff failed to object to jur y instruc tions). The district court also held that th e Titl e VII statutory damages cap applied, thus limitin g the award for non-economic damages and punitive damage s for tho se claims to a maximum of $300,000. Id. at 1 6 (jury awarded $150,000 for the 1992 promotion claim an d $1.5 milli on for the retaliation claim and $7 million in punitive damages; it was not disputed that Na sh Finch has

mo re than 500 employees; see 42 U.S.C. § 1981a(b)(4 ) ($300,000 maximum for compensatory and punitiv eThedistrict court reduced the jury verdict to a total of $421,000 ($21,000 for 3 lost wages, $100,000 for compensatory damages for the 1990 promotion, and $300,000 for compensatory and punitive damages for the 1992 promotion and the retaliatio n claims). The district court also ordered front pay ($447 per month), promotion to the next available foreman position (plus seniority from November 1990), attorney’s fees, costs and expenses, and post-judgment interest.
-12- dam ages)). The district court did not review th e pu nitive damages award for excessiveness. Id. at 1 4 (not ing nonetheless that $300,000 was not excessive i n view of du ration of discrimination, level of retaliation and f inancial well-being of employer). This appeal an d 3 cross-appeal followed.-13-

ACTIONABLE § 1981 CLAIM-- 1990 PROMOTION

NashFinch argues the district court erred in denyin g its m otion for judgment as a matter of law on the 199 0 prom otion claim. Nash Finch argues the 1990 promotio n claim is not actionable under 42 U.S.C. § 1981 becaus e the pro motion from leadman to foreman did not involve a significant change in duties, compensation o r responsibility. We disagree.

In Pat terson v. McLean Credit Union , 491 U.S. 164 , 176-77, 182 (1989) ( Patterson ), the Supreme C ourt held 42 U.S. C. § 1981 prohibited racial discrimination in th e formation of an employment contract but did not apply to “proble ms that may arise later from the conditions o f
co ntinuing employment,” that is, in the employmen t rela tionship. After Patterson , courts held that claim s alleging discriminatory discharge could not be brough t under § 1981. E.g., Taggart v. Jefferson County Chil d Support Enforcement Unit , 935 F.2d 947, 948 (8th Cir

. 1991 ) (banc). Congress later enacted the Civil Right s Act o f 1991 in part to correct what it regarded as th e Court’s er roneous construction of the scope of 42 U.S.C. § 1981 in Patterson . In § 101(2)(b) of the Act, 4 2 U.S.C. § 1981(b), Congress redefined the term “make an d enforce contracts” specifically to include “the making , performanc e, modification, and termination of contracts, and the enjoyment of all benefits, privileges , terms, and cond itions of the contractual relationship.” The 199 1 Act bec ame effective on November 21, 1991. However, i n Rivers v. Roadway Express, Inc. , 511 U.S. 298 (1994), the Sup reme Court held that § 101 should not be applie d retroactiv ely to pending cases or pre-enactment conduct. For thi s reason, Patterson and not the 1991 Act applie s-14-

to the 1990 claim because it occurred before November 21, 1991, the effective date of the 1991 Act.-15-

Pattersonheld that the denial of a promotion is not acti onable under § 1981 unless “the promotion rises t o th e level of an opportunity for a new and distinc t relatio n between the employee and the employer.” 49 1 U.S. at 18 5, citing Hishon v. King & Spaulding , 467 U.S. 69 (198 4) (challenging refusal of law firm to promot e associa te to partnership under Title VII). Not ever y refusal to promote violates Patterson because “each step dow n the path of one’s career does not create a new an d distinct relation with the employer for purposes of th e Patte rson test.” Fray v. Omaha World Herald Co. , 96 0 F.2d 1370, 1373 (8th Cir. 1992) (footnote omitted)

. “[ Pa tterson ] strongly suggests that, in addition to a n increase in pay and duties, an actionable pro motion claim must involve a meaningful, qualitative change in th e contractual relationship.” Sitgraves v. Allied-Signal , In c. , 953 F.2d 570, 573 (9th Cir. 1992) (noting a s examples of actionable promotion claim moves fro m non-supervisory to supervisory position and from hourl y to salaried compensation); see Rodriguez v. Genera l Motors Corp. , 27 F.3d 396, 399-400 (9th Cir. 1994 ) (holding essentially lateral change not actionabl e refusal to promote); Butts v. City of New Yor k Department of H ousing Preservation & Development , 990 F.2d 1397 , 1411-12 (2d Cir. 1993) ( Butts ) (noting inquir y should not be co nfined to job titles but should examine actua l chan ges in responsibility and status); cf. Winbush v

. Iowa , 66 F.3d 1471, 1477 (8th Cir. 1995) (iss ue noted but not decided).

We agree with the district court that the promotio n fromleadman to foreman involved a sufficiently new an d fundamentallydifferent contractual relationship t o-16-

const itute an actionable promotion claim under § 1981

. Th is was not the kind of promotion “understood by th e parti es to be given routinely upon satisfactory jo b perform ance.” Butts , 990 F.2d at 1412. Nor was it th e kindof promotion that involved merely “moving an employe e from one position to another a s part of a reallocation of personnel resources, not invol ving a substantial increase instatus or responsibility.” Id. The promotion involve d
a cha nge from limited supervisory duties and limite d authority over employees to ad ditional supervisory duties and greater authority, from hourly to salarie d compensation, and from non-management to managemen t status, as-17-

well as an increase in pay and a change of position in th e cha in of authority. There were many leadman position s (six in the shipping department alone) but only fou r foremanpositions, each in charge of one department in th e
ware house, who reported directly to the superintendent

. Unlike leadmen, foremen perfor med traditional supervisory functions like making work assignments, planning and the hirin g, evaluation and discipline of employees. Th e relat ivelymodest difference in pay between the tw o positions and the supervisory nature of both positions di d not outweigh the other factors. The district court di d not err in denying Nash Finch’s motion for judgment as a matter of law on the 1990 promotion claim.

INTENTIONAL DISCRIMINATION

Nash Finch next argues Kim failed as a matter of law to ma ke a submissible case that he was not promoted i n 1990 and 1992 because of intentional discrimination on th e basi s of race, color or national origin. This argumen t has two points. First, Nash F inch argues instruction No. 12 incorrectly permitted the j ury to find in favor of Kim if it found only that Nash Finch’s asserted legitimate , nondiscriminatory reason for n ot promoting him was false. NashFinch argues that the instruction failed to require the jury to find that the asserted reason was a pretex t for intentional discrimination. Nash Finch also argue s there was insufficient evidence of intentiona l dis crimination, that is, that it failed to promote Ki m because of race, color or national origin. In sum, Nash Finch argues that Kim failed t o show that its articulated legitimate, nondiscriminatory reason was false and that,
even assuming it was false, such a finding alone canno t-18-

suppo rt a finding of intentional discrimination. Nas h Fi nch’s argument correctly states the applicable law ; however, we hold the instruction was not erroneous and th e evidence was sufficient to support the jury’s verdict tha t Nash Finch intentionally discriminated against Kim.

The analysis applicable to Title VII disparat e treatment and 42 U.S.C. § 1981 claims in employment cases is the familiar three-part fra mework initially set out in-19-

McD onnell Douglas Corp. v. Green , 411 U.S. 792, 800-0 6 (1973) ( McDonnell Douglas ), and further refined in Suprem e Court cases, most recently St. Mary’s Honor Center v

. Hicks , 509 U.S. 502 (1993) ( Hicks ). This court recently clarifiedthe analysis in Ryther v. KARE 11 , 108 F.3d 832 , 836 (8th Cir.) (banc) ( Ryther ), cert. denied , 117 S.Ct

. 2510 (1997). The elements of a Title VII disparat e treatment claim and a § 1981 c laim are identical. Hicks , 509 U.S. at 506 n.1 (noting McDonnell Douglas framewor k al so applies to claims of purposeful employmen t di scrimination on the basis of race under 42 U.S.C. § 1983). First, the plaintiff must establish a prima facie case. Second, if the plaintif f establishes a prima facie
case, the defendant must “rebut the presumption o f discr imination [raised by the prima facie case] b y produ cing evidence that the plaintiff was rejected, o r
someone else was preferred, for a legitimate , nondiscriminatory reason.” Te xas Department of Community Aff airs v. Burdine , 450 U.S. 248, 254 (1981) ( Burdine ) (n oting the employer must only articulate legitimate , nondiscriminatoryreason, but need not persuade th e factfinder that it was actually motivated by the proffere d reasons). Third, if the defendant carries this burden , the plaintiff is entitled to t he opportunity to show that the defendant’s articulated reason was in fact “not th e true reason for the employment decision” and a “pretex t for discrimination.” Id. at 256; see Hicks , 509 U.S. at 216 & n.6 (“pretext for discrimination” means both tha t the proffered reason was false and that discrimination wa s the real reason).

“Thi s burden [of demonstrating that the proffere d
re ason was not the true reason for the employmen t-20-

decis ion] now merges with the ultimate burden o f persuading the [trier of fact] that [the plaintiff] ha s been the victim of intentional discrimination.” Burdine , 450 U.S. at 256. The plaintiff can establish that he or she h as been the victim of intentional discriminatio n “either directly by persuadingthe [trier of fact] that a discriminatoryreason more likely motivated the employer
or in directly by showing that the employer’s proffere d explanation is unworthy of credence.” Id.-21-

The factfinder’s disbelief of the reasons pu t forward by the defendant (particularly i f disbelief is accompanied by a suspicion o f men dacity) may, together with the elements o f the prima facie case, suffice to sho w intentional discrimination. Thus, rejection o f the defendant’s proffered reasons, will permi t the trier of fact to infer the ultimate fact of inten tional discrimination, and . . . , upo n suchrejection, “[n]o additional proof o f discrimination is required .”
Hicks , 509 U.S. at 511 (footnote omitted).

Thus, according to Hicks , when th e plain tiff’s evidence . . . challenges th e defendant’s art iculated nondiscriminator y reaso n, such evidence may serve as well t o support a reasonable infe rence tha t disc rimination was a motivating reason for th e emplo yer’s decision. As the Supreme Court ha s observed, “when all legitimate reasons fo r reje cting an applicant have been eliminated a s possible reasons for the employer’s actions, it is mor e likely than not the employer, who w e gen erallyassume acts only with some reasons , based [its] decision on an impermissibl e consideration such as [race].”

. . . .
In sum, when the employer produces a nondiscriminatoryreason for its actions, th e prima facie case no longer creates a lega l presumption of unlawful discrimination. Th e elem ents of the prima facie case remain , however, and if they are accom panied by evidence [showing that the defendant’s proffere d explanation is false] and disbelief of th e defendant’s proffered explanation, they ma y permit the jury to find for th e plaintiff. This-22-

is not to say that, for the plaintiff t o succeed, simply proving [that the defendant’ s proffered explanation is false] is necessaril y enoug h. We emphasize that evidence [that th e defendant’s proffered explanat ion is false] will not be enough to make a submissible case if i t is, standing alone, inconsistent with a reasonable inference of [unlawful ] discrimination. [T]he plaintiff must stil l persu ade the jury, from all the facts an d circumstances, that the employment decision wa s based upon intentional discrimination.-23-

Ryth er , 108 F.3d at 836-38 (citation and footnote s omitted). “Thus, Hicks makes it clear that t he plaintiff must show ‘ boththat the [proffered] reason was false , and th at discrimination was the real reason.’” Id. a t 838 n.5, c iting Hicks , 509 U.S. 515. “It is not enough, in o ther words, to dis believe the employer; th e factfinder must believe the plaintiff’s explanation o f intentional discrimination.” Hicks , 509 U.S. at 519.
Jury Instructions

We address the instruction issue first. “[W]e revie w the district court’s jury instructions for abuse o f disc retion and on review must determine simply ‘whethe r the instructions, taken as a whole and viewedin light of the evidence and applicable law, fairly and adequatel y submitted the issues in the case to the jury.’” Karcher v. Emerson Electric Co. , 94 F.3d 502, 510 (8t h Cir. 1996) (cit ing Sherbert v. Alcan Aluminum Corp. , 66 F.3d 965 , 968 (8th Cir. 1995)), cert. denied , 117 S. Ct . 1692, 1693 (1997). “[W]e will not find error in instruc tions simply because they are technically imperfect or are not a model of c larity.” Hastings v. Boston Mutual Life Insuranc e Co. , 975 F .2d 506, 510 (8th Cir. 1992). We will reverse only if we find that “the jury instructions contained an

error or errors that affected the substantial rights o f the parties.” Id.

InstructionNo. 12 provided in part that “[a] false o r prete xtual reason for the decision not to promote th e plaintiff is on e form of evidence from which you may, but are not required, to find that the defendant discr iminated against the pla intiff.” Nash Finch argues that this part of instruction No. 12 improperly permitted the jury t o-24-

find in favor of Kim if it found only that Nash Finch’ s asserted legitimate, nondiscriminatory reason for no t pr omoting him was false. We disagree because, when rea d

as a whole, instruction No. 12 correctly set forth th e applic able law. The paragraph immediately preceding th e sent ence to which Nash Finch objected provided that “yo u may find Defend ant Nash Finch intentionally discriminated against Plaintiff Jin Kim if you reject the Defendant’ s stated reasons for not promoting him and you fin d Defendant’s stated reasons for its decision not to promote Plaintiff were given to hide an intent by Nash-25-

Finchto discriminate on the basis of his race, color o r nation al origin.” This part of instruction No. 1 2 correctly instr ucted the jury, as required by Hicks , that it had to find both that the stated reason was false an d that intentional discrimination on the basis of race wa s the real reason in order to return a verdict in favor o f Kim, not only that the stated reason was false. Ryther , 108 F.3d at 838 & n.5 (noting Hicks makes it clear tha t the plaintiff must show boththat the reason was f alse and that intentional discrimination was the real reaso n). The instructions fo r the 1990 promotion claim (No. 9) and the ADEA claim (No. 14) similarly provided that the ju ry could find race or age was a determining factor if it fo und Nash Fi nch’s stated reason for its decision was “not the tru e
reason , but [was] a ‘pretext’ to hide discriminator y motivation.” These instructions correctly premise d liability on a finding of discrimination and not m erely on

a fi nding that Nash Finch’s proffered reason was false.
Sufficiency of the evidence-- failure to promote

Nex t, we address the sufficiency of the evidence

. NashFinch argues that it is entitled to judgment as a matter of law because Kim failed to make a submissibl e
case that racial discrimination motivated the decision s not t o promote him. Nash Finch argues that there wa s evi dence that its proffered reason was false but n o evidence of racial discrimination. We disagree.

“[W ]e will not reverse a jury’s verdict fo r in sufficient evidence unless, after viewing the evidenc e in the light most favorable to the verdict, we conclud e that no reasonable juror could have returned a ver dict for the non-moving party.” Ryther , 108 F.3d at 836. Our role-26-

on appeal is to determine whether there is an evidentiary basis for the jury’s verdict. Id. at 844-45. “[W]he n that evidentiary basis becomes apparent, it [is ] immaterial that the court might draw a contrary inference

or fee l that another conclusion is more reasonable. ” Lavender v. Kurn , 327 U.S. 645, 653 (1946). “Whether a n issue was properly before the jury, however, is a lega l question which is-27-

re viewed de novo.” Kimzey v. Wal-Mart Stores, Inc. , 10 7 F.3d 568, 573 (8th Cir. 1997) (citation omitted).

We have reviewed the evidence in the light mos t favorable to Kim as the prevailing party, assumed that all confl icts in the evidence were resolved in his favor , assumed as proved all facts that his evidence tended t o prove, and given him the benefit of all reasonabl e in ferences that may reasonably be drawn from the fact s proved. We hold the record as a whole-- specifica lly, the combination of the undisputed evidence as to the elements of the prima fa cie case and the strong evidence that Nash Finch’s proffered reason was false, which, when co nsidered with the strong evidence of retaliation-- clearly provided sufficient evidence as a matter of law to allow the jur y to find Nash Finch intentionally discriminated aga inst Kim

on t he basis of race in failing to promote him. Thi s
reason able inference is the logical result of th e applic ation to the evidence of the McDonnell Dougla s anal ytical framework for the allocation of the burden o f prod uction and the order for the presentation of proof.

It was not disputed that Kim established a prima faci e case: (1) Kim was a member of a racial minority, (2) he was qualified for promotion, ( 3) he was not promoted, and (4) Nash Finch promoted a non-minority. The prima facie
case created a legal presumption of unlawfu l discrimination. Because Nash Finch articulate d nondiscriminatory reasons for promoting someone else, the legal presumption of unlawful discrimination, created by the prima facie case, then dropped out of the case

. However, the elements of the p rima facie case remained in the case. The evidence refuted Nash Finch’s articulated nondiscriminatory

reasons and strongly suggested that Nas h-28-

Finchhad lied about those reasons. Nash Finch conceded at trial that Kim was qualified for promotion but argued the s uccessful candidates were better qualified. Ther e was evidence that Kim was rela tively better qualified for promotion in terms of education, seniority and supervisor y experience than the successful candidates. There was als o eviden ce from which the jury could conclude that Nas h Finch ’s managers were not particularly credible. Mun d initially told Kim that the 1990 promotion had-29-

been made at a higher level ev en though Mund had made the decisionhimself. Mund then told Kim that he had not bee n promot ed because he was not qualified. However, Mun d testified at trial that he nev er seriously considered Kim for promotion because Kim lacked personal loyalty to him (Mund).

The evidence challenged Nash Finch’s articulate d nondiscriminatoryreasons for not promoting Kim an d supported a reasonable inference that unlawfu l discr imination was a motivating reason for Nash Finch’ s failure to promote Kim. This evidence was sufficient to permit the jury to infer the u ltimate fact of intentional discrimination. Hicks , 509 U. S. at 511; Ryther , 108 F.3d at 836-37. This is because “when all legitimate reasons for r ejecting an applicant have been eliminated a s possible reasons for the employer’s actions, it is mor e likely than not the employer, who we generally assume act s only wi th some reasons, based [its] decision on a n imper missible consideration such as race.” Furnc o Constr uction Co. v. Waters , 438 U.S. 567, 577 (1978)

. This is not a case in which the evidence showing th e emp loyer’s proffered reason was false was inconsisten t with a reasonable inference of unlawful discrimination

. Her e, Nash Finch contended the real reason Kim was no t promo ted was that the successful candidates were bette r quali fied. Kim’s evidence showed that the proffere d
reason was false; it did not show that some reason other than unlawful discrimination was the real reason he wa s not promoted. See Ryther , 108 F.3d at 837 n.4 (discussin g
cases in which evidence showing employer’s proffere d
reas on was false was inconsistent with reasonabl e inference of unlawful discrimi nation and citing Rothmeier

v. Investment Advisers, Inc. , 85 F.3d 1328, 1337 (8th Cir

.-30-

1996) (evidence showed real reason for discharge wa s conf rontation about SEC violations), Barber v. America n Air lines, Inc. , 791 F.2d 658, 660 (8th Cir.) (evidenc e sho wed real reason for disparate treatment was not ag e discr imination), cert. denied , 479 U.S. 885 (1986), an d Visser v. Packer Engineering Assocs. , 924 F.2d 655, 65 7 (7th Cir. 1991) (banc) (explaining “pretext” in employmen t lawmeans a reason that employer offers for action claime d to be discriminatory and that factfinder disbelieves , allowing inference that employer is trying to conceal a discriminatory reason and not some other unethical-31-

reason or even a mask for such a reason; evidence showed that plaintiff was fired because he was disloyal to CEO; thus real, albeit unethical, reason for firing was not ag e discrimination but plaintiff’s loyalty to company rather than to CEO personally)). In addition to the elements of the prima facie cas e andthe evidence showing Nash Finch’s proffered reason wa s fa lse, there was also evidence that, out of more tha n 3,500 employees, only 2 management employees in 25 years

were non-white. Those employees were not warehous e supervisory employees; they we re assistant retail grocery sto re managers. There was also evidence that the onl y As ian-American employee at the Cedar Rapids warehous e other than Kim was employed as a janitor. There was also
some evidence that Nash Finch disciplined Kim mor e severely

than non-Asian employees for comparable incident s and that the disciplinary action was in retaliation fo r his filing discrimination charges. As noted above, direc t evidence of intentional discrimination was not required;

case law recognizes that intentional discrimination may b e prov en by circumstantial evidence because “[t]here wil l seldo mbe ‘eyewitness’ testimony as to the employer’ s mental processes.” United Sta tes Postal Service Board of Governors v. Aikens , 460 U.S. 711, 714 n.3 (1983). “Afte r all, the McDonnell Douglas framework exists to provid e discrimination plaintiffs a way to prove their case when they do not have ‘explicit, inculpatory evidence o f discriminatoryintent.’” Shannon v. Ford Motor Co. , 7 2 F.3d 678, 682 (8th Cir. 1996), citing Hutson v. McDonnell Douglas Corp. , 63 F.3d 771, 776 (8th Cir. 1995).

In su m, the record as a whole in this case-- th e evide nce showing that Nash Finch’s proffered reason wa s false, plus the evidence estab lishing the elements of the-32-

prima facie case-- was sufficient to permit the jur y
rea sonablyto find that Nash Finch intentionall y discriminatedagainst Kim on the basis of race in refusin g to promote him to shipping foreman in November 1990 and i n April 1992. Consistent with Hicks , no additional evidenc e of discrimination was required. The evidence in this cas e prese nted inconsistent inferences to the jury, and th e resolution of this conflicting evidence was a matter for the jury to resolve. E.g. , Ryther , 108 F.3d at 84 5 (citing cases). The-33-

district court did not err in denying Nash Finch’s motion fo r judgment as a matter of law on the discriminatio n claims.

RETALIATION

Nash F inch next argues Kim failed to make a submissible retaliation claim. Nash Finch argues that, a s
a matter of law, Kim suffered no adverse employment actio n becau se he was not demoted, terminated, reassigned, o r suspe nded, did not lose any compensation or privileges , and in fact is still employed by Nash Finch. Nash Finch also argues that, assuming there was an adverse employmen t act ion, there was no evidence of a causal relationshi p between to Kim’s filing a race discrimination charge and any adverse employment action. Nash Finch also argue s that any adverse employment action was justified under th e circumstances.

Like the substantive claim of racial discrimination,

a cla im of retaliation, in a racial discriminatio n context, can violate both Titl e VII and 42 U.S.C. § 1981. Setser v. Novack Investment Co. , 638 F.2d 1137, 1146-4 7 (8 thCir. 1981) ( Setser ) (subsequent history omitted ) (ho lding retaliation by employer against plaintiff fo r filing race-based EEOC complai nt would be based on racial discrimination for purposes of 42 U.S.C. § 1981 claim) ;
see also Greenwood v. Ross , 778 F.2d 448, 455-56 (8th Cir

. 1985); Sisco v. J.S. Alberici Construction Co. , 655 F.2d 146, 150 (8th Cir. 1981) (appl ying Setser ), cert. denied , 455 U.S. 976 (1982). We apply the same McDonnell Douglas analytical framework to a retaliation claim under § 1981 andTitle VII. See, e.g. , Evans v. Kansas City, Missouri , School District , 65 F.3d 98, 101 (8th Cir. 1995) (§ 1981-34-

retaliation claim), cert. deni ed , 116 S. Ct. 1319 (1996); Kobrin v. University of Minnesota , 34 F.3d 698, 704 (8th Cir. 1994) (Title VII retaliation claim) ( Kobrin ). Th e elements of a retaliation claim under § 1981 and Title VI I
are ( 1) protected activity, (2) subsequent advers e employment action, and (3) a causal relationship between the two. See Barge v. Anheuse r-Busch, Inc. , 87 F.3d 256, 259 (8th Cir. 1996) (§ 1981 retaliation claim); Kobrin , 3 4 F.3d at 704 (Title VII retaliation claim).-35-

Adverse employment action

Nash Finch argues that the district court erred i n denyingits motion for judgment as a matter of law becaus e Kim failed to show any adverse employment action. Nas h Finch argues Kim was not demot ed, terminated, reassigned,

or suspended, did not lose any compensation or privileges , andin fact is still employed by Nash Finch. We hold Nas h Finch ’s actions did rise to the level of advers e employment action.

Ty pically, it is obvious whether an employer too k adverse employment action when , for example, the employee has been terminated or discharged. However, retaliatory conduct may consist of “action less severe than outright discharge.” Dortz v. City of New York , 904 F. Supp. 127, 156 (S.D.N.Y. 1995) (allegations that employer’s actions disa dvantaged and interfered with employee’s ability t o performher job). What happened to Kim was much “‘mor e disruptive than a mere inconvenience or an alteration of job responsibilities’ [or] [c] hanges in duties or working conditions that cause no materially significan t disad vantage.” Harlston v. McDonnell Douglas Corp. , 3 7 F.3d 379, 382 (8th Cir. 1994) (citation omitted) (n o adverse employment action where plaintiff was reassigned witho ut diminution in title, salary or benefits); se e Thom as v. St. Luke’s Health Systems, Inc. , 869 F. Supp

. 1413, 1435 (S.D. Iowa 1994) (holding employer’s initia l deman ds that employee take drug test, which wa s subsequently withdrawn, and accept another position had n o impact on continued employment and did not rise to level of adverse employment action), aff’d , 61 F.3d 908 (8t h Cir. 1995) (table) (No. 94-4081). Kim’s duties had been redu ced; he received much lower performance evaluation s-36-

than he had received before filing his employmen t discrimination charge; he was required to undergo special remedi al training. There was also evidence that Nas h Finch had “papered” his personnel file with negativ e reports, including two writtenreprimands. These are the kin d of serious employment consequences that adversel y affected or undermined Kim’s p osition, even if he was not discharged, demoted or suspended.-37-

In any event, we need not decide in the present case whether each act in itself constituted actionable “advers e empl oyment action” because Kim essentially claimed tha t Nash Finch had systematically retaliated against him, tha t is, that all the acts were taken in response to his filin g the e mployment discrimination charge and were thu s connectedto one another. Cf. Caliendo v. Bentsen , 881 F

. Supp. 44, 48 (D.D.C. 1995) (alleging personnel action s such as removal from undercover operation, failure t o
re ceive monetary award, removal as acting grou p sup ervisor, receipt of letter of reprimand, etc

. constituted series of adverse employment actions i n
re taliation for EEOC activities). We hold that, as a matte r of law, Nash Finch’s conduct, which include d
re duction of duties, disciplinary action and negativ e personnel reports, as well as required remedial training, constituted adverse employment action.
Sufficiency of the evidence

Nash Finch also argues that the district court erred in denying its motion for judgment as a matter of la w because there was no evidence of a causal connectio n between Kim’s filing a race di scrimination charge and any adverse employment action and that any adverse employment act ion was justified under the circumstances. We hav e reviewed the evidence in the light most favorable to Kim

as the prevailing party, assumed that all conflicts in th e evidence were resolved in his favor, assumed as proved al l facts that his evidence tended to prove, and given him th e benefit of all reasonable inferences that may reasonably be drawn from the facts proved. We hold the record as a whole-- specifically, the elements of the prima facie cas e and t he evidence showing that Nash Finch’s proffere d-38-

reason was false-- provided a sufficient basis from which

reaso nable jurors could find that Nash Finch retaliate d against Kim for filing an employment discriminatio n charge. This permissible infe rence is the logical result of t he application to the evidence of the McDonnel l Dougl as analytical framework for the allocation of th e burdenof production and the order for the presentation o f proof.-39-

Filingan employment discrimination charge is activit y protected by Title VII, §704(a), 42 U.S.C. § 2000e–3(a). NashFinch knew in May 1992 that Kim had filed a n emplo yment discrimination charge. In fact, Nash Finc h justified disclosure of Kim’s personnel file, whic h
con tained a report of a disciplinary action based on a
race-r elated incident, as part of its response to th e local civil rights commission investigation. Kim ha d recei ved high performance evaluations and had had n o disci plinaryproblems. However, after Kim filed th e employment discrimination charge, his Saturday and fill-i n ship ping foreman duties were immediately eliminated, h e began to receive markedly lower performance evaluations, he was orally cautioned about a poor attitude towar d management, he was placed unde r surveillance and excluded fromm eetings at work, he was disciplined following a September 1992 incident in whi ch Nash Finch found Kim had made racial slurs against a co-worker, and in late 1993 h e was required to participate inspecial remedial training. This circumstantial evidence-- that the employer was awar e of th e protected activity and that adverse employmen t action“followed the protected activity so closely in tim e
as to justify an inference of retaliatory motive”-- wa s suff icient to establish the requisite causal connectio n between the protected activity and the adverse employment action. Rath v. Selection Res earch, Inc. , 978 F.2d 1087, 1090 (8th Cir. 1992); see Kobrin , 34 F.3d at 704; cf

. Barge v. Anheuser-Busch, Inc. , 87 F.3d at 259-60 (holding plaintiff failed to make prima facie case of retaliation because she produced no evidence connecting her prior EEO C claimto alleged harassment, denial of assistance wit h job-related tasks, or denial of disability benefits).-40-

Nash Finch defended its post-May 1992 actions as a legitimate, continuing “dialog ue” between an employee and manag ement about adherence to company work rules an d respect for company equal employment opportunity policies

. However, Kim produced evidence that refuted the negative repor ts in his personnel file, including evidence tha t Nash Finch had “papered” his p ersonnel file with negative reports. Some of the negative reports involved petty and ins ignificant incidents; however, some of the negativ e repor ts supported Nash Finch’s claim that Kim lacke d management ability and-41-

had refused opportunities for additional supervisor y responsibility. More seriously, as noted above, there wa s evidence that the initial reports about the September 199 2 incid ent did not include any reference to racia l discrimination. However, in N ovember 1992, after Kim had requested a right-to-sue lette r, senior management issued

a wr itten reprimand to Kim about the September 199 2 incident. This written reprimand specifically described the racial context of the incident and stated that th e companywould not tolerate discrimination which would be in violation of Title VII and that Kim’s actions ha d probably violated his co-worke r’s civil rights. The jury

cou ld have reasonably found that Nash Finch placed th e writte n reprimand in Kim’s personnel file in order t o discredit Kim when the local civil rights commission was investigatinghis employment discrimination charge. Ther e
was also evidence that Nash Finch did not handle in th e
same way a similar dispute about work assignment s inv olving the same co-worker and another foreman and a
complaint about sexual harassment by another employee

. Unlike the incident involving Kim, these incidents did no t result in written reprimands.

In sum, we hold the evidence as a whole-- evidenc e that the employer’s proffered reasons were false, as well

as the evidence establishing the elements of the prim a facie case-- was sufficient to permit the jury to find th e ultimate fact of retaliation. Consistent with Hicks , no addit ional evidence of retaliation was required. Th e evidence in this case presented inconsistent inferences t o the jury, and the resolution o f this conflicting evidence was a matter for the jury to r esolve. The district court didnot err in denying Nash Finch’s motion for judgment a s a matter of law on the retaliation claim.-42-

AMENDMENT OF PLEADINGS

This is Kim’s principal contention on appeal. Ki m argues the district court abused its discretion in denyin g his motion to amend his pleadings to conform to th e evidence under Fed. R. Civ. P. 15(b) by adding 42 U.S.C. § 1981 as a theory for recovery for the 1992 promotion an d reta liation claims. Nash Finch, however, characterize s th is issue as an instruction issue and argues th e instructions and the special verdict forms submitted the 1992 promotion and retaliation claims to the jury unde r Ti tle VII only. Nash Finch argues the district cour t correctlyconcluded that Kim’s failure to object to th e instructions or the special verdict forms under Fed. R

. Civ. P. 51 waived any argument that those claims shoul d have be en submitted to the jury under § 1981 as well a s Title VII.

Whet her the 1992 promotion and retaliation claim s should have been (or actually were) submitted to the jury under § 1981 as well as Title VII is critical becaus e compensatory and punitive damages are “capped” under Titl e VII b ut not under §1981. Thus, under Title VII, Kim’ s compe nsatoryand punitive damages would be limited t o $300,000, but the amount of da mages could be much greater under § 1981. (The jury awarded Kim a total of $8,650,00 0 for c ompensatory and punitive damages for the 199 2 pro motion and retaliation claims.) This is because 4 2 U.S.C

. § 1981a(b)(3)-- the statutory cap-- limits th e amount of any award of compensatory and punitive damages for Title VII claims for inten tional discrimination. Cf. Kimz eyv. Wal-Mart Stores, Inc. , 107 F.3d at 575-7 6 (ap plying statutory cap to Title VII claims but not t o state anti-discriminatory claims); Luciano v. Olste nThe Iowacivil rights statute does allow for compensatory damages but no t 4 punitiveda mages. E.g. , Chauffeurs Local Union No. 238 v. Iowa Civil Right s Comm’n , 394 N.W.2d 375, 382-84 (Iowa 1986).
-43- Corp. , 912 F. Supp. 663, 675 (E.D.N.Y. 1996) (same) , aff’d , 110 F.3d210 (2d Cir. 1997). However, the Title 4 VII s tatutory cap does not apply to § 1981 claims; th e 1991 Civil Rights Act, which made-44-

comp ensatoryand punitive damages available under Titl e VII, specifically provides that “[n]othing in this sectio n shall be construed to limit the scope of, or the relie f available under, section 1981 of this title.” 42 U.S.C. § 1981a(b)(4); see Johnson v. Metropolitan Sewer District , 926 F. Supp. 874, 876 (E.D. Mo. 1996), citing West v

. Boe ing Co. , 851 F. Supp. 395, 399-01 & nn.4, 5 & 7 (D

. Kan. 1994) (reviewing legislative history of § 1981a(a)(1 )
as ex panding remedies available under Title VII fo r intentional discrimination); cf. Reynolds v. Octe l Communications Corp. , 924 F. Supp. 743, 747 (N.D. Tex

. 1995) (holding recovery of both liquidated damages under ADEA and punitive damages unde r Title VII would be double

recov eryfor same conduct); Bradshaw v. University o f Maine System , 870 F. Supp. 406, 407-08 (D. Me. 1994 ) (holding plaintiff who could have but did not plead race discr imination claim under §1981 was not barred fro m bri nging Title VII race discrimination claim fo r compensatory and punitive damages by § 1981a).

As a threshold matter, we do not agree that Kim waive d this argument by failing to ob ject to the instructions or the special verdict forms. The focus of Kim’s argument i s not on the jury instructions o r the special verdict forms themselves (indeed, Kim argues he had no grounds to objec t to the jury instructions or the special verdict form s because they correctly stated the applicable law), but on the denial of his motion to amend the pleadings to confor m to the evidence. Cf. City of St. Louis v. Praprotnik , 48 5 U.S. 112, 119-20 (1988) (holdi ng failure to timely object to jury instructions was no obstacle to appellate review of same legal issue raised in motions for summary judgmen t and directed verdict). Motion s to amend the pleadings to conformto the evidence under Rule 15(b) can be made a t-45-

any time, even after judgment. If the issue of § 198 1 liability

was tried by implied consent, the district cour t should have considered it raised by the pleadings an d should have allowed amendment upon Kim’s request.

Amendments are allowed when the parties have had actual notice of an unplea ded issue and have been given an adequate opportunity to-46-

cure any surprise resulting from the change i n the p leadings. And, when evidence relating t o issu es outside the pleadings is introduced an d tr ied without objection, the parties will b e deemed to have acquiesced.

Nielson v. Armstrong Rubber Co. , 570 F.2d 272, 275 (8t h Cir. 1978) (citations omitted).
An amended complaint that “mer ely amplifies some of the allegations that have b een proven” should be a llowed. On the other hand, however, a district court is not requiredto grant a motion to amend on the basis of some evidence tha t woul d be relevant to the new claim if the sam e evidence was also relevant to a claim originally pled. The introduction of such evidence doe s “not provide the defendant any notice” that the implied claim was being tried.

Gamm a-10 Plastics, Inc. v. American President Lines , Ltd. , 32 F.3d 1244, 1256 (8th Cir. 1994) (citation s omitted), cert. denied , 513 U.S. 1198 (1995).

Inthe present case, the same evidence relevant to th e
ne wtheory of recovery-- § 1981-- was relevant to th e theoryof recovery originally pled-- Title VII. This is be cause, as discussed above, Title VII and § 1981 se t forthparallel, substantially identical, legal theories o f recoveryin cases alleging intentional discrimination in employment on the basis of rac e. This is particularly so after the enactment of the 199 1 Civil Rights Act. Before 199 1, compensatory and punitive damages were availabl e under § 1981 but not under Title VII. Among other things , the 1991 Civil Rights Act expanded the definition of “mak e and enforce contracts” in § 19 81 to include the terms and-47-

conditions of employment, including discharge, added the right to jury trial to Title VII, and, most importantly, expandedthe remedies available to Title VII plaintiffs t o include compensatory damages (for emotional pain , suf fering, mental anguish, etc.) and punitive damages

. Compensatory and punitive damages are only available unde r Titl e VII if the plaintiff cannot recover under § 1981

. 42 U.S.C. § 1981a(a)(1). The-48-

eleme nts of claims alleging disparate treatment on th e basis of race under Title VII and intentional employment discrimination on the basis of race under § 1981 ar e identical. Hicks , 509 U.S. at 506 n.1. The standard for punitive damages is the same u nder Title VII, 42 U.S.C. § 1981a(b)(1) (malice or reckles s indifference to federally protectedrights), and § 1981. E.g. , Kolstad v. America n Dental Ass’n , 323 U.S. App. D. C. 402, 108 F.3d 1431, 1437 (1997 ) (holding standard of proof for punitive damage s under 42 U.S.C. § 1981a is the same as that previousl y established for punitive damages under 42 U.S.C. §§ 1981 and1983), citing Smith v. Wade , 461 U.S. 30, 56 (1983) ( § 198 3), and Williamson v. Handy Button Machine Co. , 81 7 F.2d1290, 1296 (7th Cir. 1987) (§ 1981). The elements o f
a ret aliation claim under § 1981 and Title VII are th e same as well. See Barge v. An heuser-Busch, Inc. , 87 F.3d at 259 (§ 1981 retaliation cla im); Kobrin , 34 F.3d at 704 (Title VII retaliation claim). However, there are still diff erences between the two statutes. They are no t co-extensive in coverage (for example, Title VII does not
cover all employers). Title VII requires exhaustion o f administrative remedies, and the statutes of limitations
are d ifferent. Most importantly, the amount o f compensatoryand punitive damages is limited under Title VII but not under § 1981.

“We h ave held that the admission of evidence bearing on a pleaded issue cannot form the basis for an amendment

un der Rule 15(b) unless the defendant knew of th e plaintiff’s intent to inject the unpleaded issues. ” McLaurin v. Prater , 30 F.3d 98 2, 986 (8th Cir. 1994). In the present case there is no doubt that Kim intended the evidence to support § 1981 in addition to Title VI I becau se the complaint itself alleged that Nash Finch’ s-49-

conduct had violated both Title VII and § 1981 (as well a s the A DEA and state law). Counts I and II, th e fai lure-to-promote counts, are broadly stated, but th e parties and the district court treated count I as allegin g the April 1992 failure-to-promote violated Title VII (as well as the ADEA and state law) and count II as alleging th e November 1990 failure-to-promote violated § 1981

. Count III alleged Nash Finch retaliated against Kim fo r filing an administrative charg e. The caption and text of Count I referred to Title VII; the caption and text o f Count II referred to § 1981 expressly and to Title VII by incorporation (the first paragraph of count II “repleaded ”-50-

the paragraphs of count I; recovery under Title VII fo r the November 1990 failure-to-promote was precluded becaus e Kimdi d not file his administrative charge within 30 0 days; the complaint was timely filed (within 2 years) for purpo ses of §1981). The caption and text of count II I alleg ed retaliation in violation of only Title VI I expre ssly, but, like count II, also incorporated th e previous paragraphs, includingthe reference therein to § 1981. The allegations in the complaint were sufficient t o put Nash Finch on notice of Ki m’s claim that Nash Finch’s conduct violated both Title VII and § 1981, certainly so that Nash Finch cannot claim surprise.

In a ddition, Kim moved several times to amend th e pleadings, in pre-trial proceedings (opposing Nash Finch’ s mot ion for summary judgment), immediately before tria l began and then during the tria l. Each time Kim explained why he sought to amend the pleadings to add § 1981 as a theory for recovery for the Ap ril 1992 failure-to-promote

an d retaliation claims, specifically referring to th e statutorycap on damages under Title VII but not under § 1981. Moreover, on the third day of trial, near the clos e of t he evidence, in ruling on Kim’s renewed motion, th e district court found that the case had been tried on the basis of both § 1981 and Title VII and granted the motion to a mend the pleadings to add § 1981 as a theory o f recovery. It was only after the case had been submitted to the jury (following an extensive instruction s conference during which, amongother issues, the standard of proof for punitive damages under Title VII and § 1981

was d iscussed) that the district court reconsidered an d then denied the motion to amend the pleadings. It would

seem that if any party was surprised by this turn o f events, it was Kim.-51-

We think the record shows that, even tho ugh § 1981 as a theory of recovery was not p leaded, it was fairly tried by the parties. Moreover, because of the substantia l identityof Title VII and § 1981 as theories of recovery for claims of intentional discrimination, Nash Finch was

no t prejudiced by the amendment because it had a fai r opportunity to defend § 1981 a s a theory of recovery. We
are s atisfied that, given the substantial identity o f Title VII and § 1981 as theories of recovery, the jury’s finding-52-

of in tentional discrimination under Title VII als o constituted a finding of inten tional discrimination under § 19 81, even though the instructions for the April 199 2 promotion and retaliation clai ms (as well as the punitive dam ages instruction) did not refer to §1981. Thus, w e hold the district court abused its discretion in denying the motion to amend the pleadings to conform to th e evidence. See, e.g. , Gamma-10 Plastics, Inc. v. American President Lines, Ltd. , 32 F.3d at 1255-57 (holding abuse of discretion to deny motion to amend complaint to ad d claimfor punitive damages under general maritime law) ; McLaurin v. Prater , 30 F.3d at 985-86 (suggesting o n remand that district court should grant motion to amen d complaint to add state law cla ims to constitutional claim bas ed on same facts); Corsica Livestock Sales, Inc. v

. Sumi tomo Bank , 726 F.2d 374, 377-78 (8th Cir. 1983 ) (holding abuse of discretion to deny motion to amen d complaint to add contract theory of recovery to rul e violation theory of recovery alleged in complaint) ; Niel son v. Armstrong Rubber Co. , 570 F.2d at 275-7 6 (holding abuse of discretion to deny motion to amen d compl aint to add strict products liability claim t o negligence claim already alleg ed); cf. Oglala Sioux Tribe

v. Andrus , 603 F.2d 707, 714 (8th Cir. 1979) (notin g federal rules abolished “theory of the pleadings” doctrin e under which plaintiff must suc ceed on those theories that are pleaded or not at all).

Because § 1981 was a basis for recovery, the Title VI I cap on compensatory and punitive damages does not apply. We turn next to Nash Finch’s damages arguments. COMPENSATORY DAMAGES-53-

NashFinch argues there was no evidence to support th e award of $21,000 in back pay (lost wages). Nash Finc h arg ues that the difference in pay between what Kim wa s paid as a leadman and what he would have been paid had he beenpromoted to foreman was at most $1932.81. Nash Finc h bas es this calculation on the salaries paid to the tw o employees who were promoted to the position of shippin g foreman in 1990 and 1992. We hold there was evidence to support the award of $21, 000 in back pay.-54-

Kimp resented evidence showing that the salaries o f comparable employees and evidence that there was no se t payscale for the position, that Nash Finch considered a number of facts in setting sal aries, and that he had more seniorityand more experience in the shipping department (inc luding experience as the Saturday shipping foreman ) tha n the two individuals who were promoted in 1990 an d 1992.

Na shFinch also argues there was no evidence t o support the award of $447 per month in front pay. Nas h Finch argues that at most the difference in pay was about $360 per month. Nash Finch ba ses this calculation on the higher of the salaries paid to the two employees who were promoted to the position of shipping foreman in 1990 and 1992. (The lower difference i n salary was about $240 per month.) The district court ba sed the amount of the front payaward on the back pay award ($21,000 over 47 month s (from November 1990 promotion to September 1994 verdict),

or $447 per month). Slip op. at 16-19, 21. We hav e already

held that the district court’s calculation of bac k payis supported by substantial evidence, and we canno t disa pprove of the calculation of front pay based on th e same evidence.
Nash Finch also argu es there was no medical or other expe rt testimony to support the finding of emotiona l dist ress. The jury awarded Kim $ 100,000 for menta l ang uishand loss of enjoyment of life caused by th e November 1 990 failure-to-promote under 42 U.S.C. § 1981. Medical or other expert evidence is not requi red to prove emotional distress. Turic v. Holland Hospitality, Inc. , 85 F. 3d 1211, 1215 (6th Cir. 1996) (Title VII). “ A plaintiff’s own testimony, along with the circumstance s-55-

of a p articular case, can suffice to sustain th e plain tiff’s burden in this regard.” Id. at 1215-1 6 (citing cases); see, e.g. , Wilmington v. J.I. Case Co. , 793 F.2d 909, 922 (8th Cir. 1986) (42 U.S.C. § 1981 ) (testimony of plaintiff and other witnesses abou t plaintiff’s deterioration in health, mental anxiety , humiliation, and emotional distress resulting fro m work ing conditions and discharge); Williams v. Tran s Worl d Airlines, Inc. , 660 F.2d 1267, 1272-73 (8th Cir

. 1981) (testimony of plaintiff about humiliati on or mental distr ess); cf. Mardell v. Harleysville Life Insuranc e Co. , 31 F.3d 1221,-56-

1232 -33 (3d Cir. 1994) (violation of employee right s freq uentlyresults in significant injury to dignity an d demoralizing impairment of self-esteem) (citing cases) , vacated on other grounds , 514 U.S. 1034 (1995); Rush v

. Scott Spec ialty Gases, Inc. , 930 F. Supp. 194, 199 (E.D. Pa. 1996) (testimony of plaintiff corroborated b y frie nds, family and expert witnesses, plus evidence o f physical suffering and need for professional care), rev’d
on ot her grounds , 113 F.3d 476 (3d Cir. 1997). Here , Kim, h is wife and his son testified about the anxiety , sleeplessness, stress, depression, high blood pressure , headaches, and humiliation he suffered after he was no t promoted and after he filed the employment di scrimination charge

. We hold that medical or other expert evidenc e
was not required to prove emotional distress and tha t there was sufficient evidence of emotional distress.

PUNITIVE DAMAGES

Nash Finch argues the district court erred i n submitt ing the issue of punitive damages to the jury

. Nash Finchargues the district court should have applied

a he ightened standard of proof for punitive damage s beca use the 1991 Civil Rights Act, 42 U.S.C. § 1981a(b)(1 ), limits the availability of punitive damages to “except ional circumstances of unusual bad motive that transcends ordinary intentional misconduct.” Brief fo r Appellee/ Cross-Appellant at 46.

Under 42 U.S.C. § 1981a(b)(1) a complaining party ma y
recover punitive damages if the defendant discriminate s “wit hmalice or with reckless indifference to th e federally protected rights of an aggrieved individual. ” We do not agree that the 1991 Civil Rights Ac t, 42 U.S.C.-57-

§ 1981a(b)(1), limits the availability of punitiv e dama ges to “exceptional circumstances of unusual ba d motive tha t transcends ordinary intentional misconduct.” The Second Circuit rejected a similar argumen t in Luciano

v. Ol sten Corp. , 110 F.3d at 219-20. In that case th e employer argued punitive damages require d “extraordinarily egregious” conduct. The cou rt held that “[n]othing in the . . . text [of § 1981a(b)(1 )] indicates that a heightened standard was meant toWeneed not decide whether recovery of punitive damages under Title VI I 5 requires a “heightened” showing beyond intentional discrimination (that is, intentional discrimination based on di sparate treatment as opposed to disparate impact), although th eauthor would suggest that it does not. See42 U.S.C. § 1981a(d)(2) (definin g -58- apply to Title VII cases.” Id. at 220, citin g Rowlett v. Anheuser-Busch, Inc. , 832 F.2d 194, 205 (1st Cir. 1987 ) (punitive damages under 42 U.S.C. § 1981 available where defe ndant’s conduct is motivated by evil motive o r involves reckless indifference to federally protecte d rights), Beauford v. Sisters of Mercy-Province o f Detroit, I nc. , 816 F.2d 1104, 1108-09 (6th Cir.) (same), cert. denied , 484 U.S. 913 (1987), and Smith v. Wade , 461 U.S. a t 55-56 (punitive damages under 42 U.S.C. § 198 3 available under common law when conduct motiv ated by evil motive or intent or reckless or callous indifference t o federally protected rights of others); accord Kolstad v. Americ an Dental Ass’n , 108 F.3d at 1437-39. The cour t also noted the legislative history indicated tha t Cong ress intended to make punitive damages availabl e under § 1981a “to the same extent and under the sam e standards that they are available to plaintiffs under 42 U.S .C. § 1981.” 110 F.3d at 220, citing 137 Cong. Rec

. H9527 (1991) (statement of Rep. Edwards), and H.R. Rep

. No. 40(II), 102d Cong., 1st Sess. 24 (1991), reprinted in 1991 U.S.C.C.A.N. 717.

For this reason, we hold the district court correctl y reje cted Nash Finch’s argument that a plaintiff mus t demo nstrate something more than that required by th e stat ute to recover punitive damages, that is, that th e def endant acted “with malice or with reckles s indi fference to the federally protected rights of a n aggrieved individual.” 42 U.S.C. § 1981a(b)(1). 5“discr iminatorypractice” to mean disparate treatment and not disparate impact); cf

.

Rowl ett v. Anheuser-Busch, Inc. , 832 F.2d 194, 205-06 (1st Cir. 1987) (rejecting i n pre-1991 Civil Rights Act case argument that punitive damages under § 1981 requires “aggravating circumstances” or “extraordinary or outrageous” misconduct, noting that it cannot really be disputed that intentional discrimination on basis of race is “worthy of some outrage”). But see Varner v. National Super Mkts, Inc. , 94 F.3d 1209, 1214 (8th Cir. 1996) (citing with approval Pandazides v. Virginia Bd. of Educ. , 13 F.3d 823, 830 n.9 (4th Cir. 1994) (construing “heightened” showing necessary to recover punitive damages under §1981a(b)(1)), cert. denied , 117 S. Ct. 946 (199 7); Karcher v. Emerson Elec. Co. , 94 F.3d 502, 509 (8th Cir. 1996) (same), cert. denie d , 117 S. Ct. 1692, 1693 (1997).

-59- Nash Finch also argues that there was insufficien t evidenc e to support the punitive damages award. Nas h Finch argues there was no evidence of willful ness, malice

or reckless indifference to the federally protecte d rights of others, much less “exceptional circ umstances of unusual bad motive that transcends ordinary intentiona l misconduct .” Nash Finch argues that, at most, there was only circumstantial evidence of discriminatio n consisting of “inconsistent explanations for the allocation o f
scarce employment opportunity.” We hold that there wa s suf ficient evidence to support the punitive damage s award.

Basedon the record as discussed above, a reasonable jury could have found that Nas h Finch acted with reckless indifference to Kim’s federally protected rights. There

was e vidence that Nash Finch knew what constitute d unlaw ful employment practices. There was also evidenc e that Nash Finch systematically retaliated against Kim for filing an employment discrimination charge and attempted to d iscredit him by “papering” his personnel file. Th e intentional discrimination at issue-- failure to promote-60-

and retaliation-- involved disparate treatment, no t dispa rate impact, and was undertaken by supervisors o r manag ement. “The requisite level of recklessness o r outrageousness [required to support punitive damages] can be in ferred from management’s participation in th e discriminatory conduct.” Kimzey v. Wal-Mart Stores, Inc. , 107 F.3d at 575, citing Kientzy v. McDonnell Dougla s Corp. , 990 F.2d 1051, 1062 (8th Cir. 1993). Direc t evid ence of intentional discrimination is not required ; circumstantial evidence may be sufficient. United States Postal Service Board of Governors v. Aikens , 460 U.S. at 714 n.3. Finally, the record contained more than merely evi dence of inconsistent explanations for Nash Finch’ s conduct, that is, that Nash Finch had lied;-61-

as d iscussed above (at some length), there was als o evidence that Nash Finch had intentionally discriminated against Kim on the bases of race or national origin.

EXCESSIVE VERDICT

Fin ally, Nash Finch argues the verdict wa s unreasonable because it was gr ossly excessive and grossly disproportionate to the kind of wrong and the actua l damages. Nash Finch argues th at the jury awarded $36,000 for back pay even though the difference in actual wage s
was less than $2,000, more than $1.5 million for emotiona l di stress even though Kim continued to work and lead a normal life, and $7 million for punitive damages, a n amount which is 3,500 times th e actual loss of $2,000 and almo st half of Nash Finch’s annual earnings. Brief fo r Appellee/ Cross-appellant at 48; Reply Brief for Appellee / Cross-appellant at 21 (citing Plaintiff’s Ex. 26 at 2).

Be cause the district court applied the Title VI I statutory

cap, the district court limited the jury’s awar d of $150,000 in compensatory damages for emotional distres s for the 1992 failure-to-promote claim, the $1.5 million i n compensatorydamages for emotional distress for th e retaliation claim, and the $7 million in punitive damages to a total of $ 300,000, slip op. at 15-16, and did no t “e ngage in an analysis as to the excessiveness of th e award except to say that damages in the amount bein g awarded are certainly not excessive due to the length of ti me the discrimination continued, the level o f retaliation by Nash Finch and the financial well-being of NashFinch.” Id. at 14. Thus, as reduced by the distric t court, the judgment awarded Kim damages in the amount of $21,0 00 for lost wages, $100,000 for emotional distres s-62-

for the 1990 failure-to-promote claim and $300,000 , including punitive damages, for the 199 2 failure-to-promote and retaliation claims. Id. at 27.

As discussed above, because the district court abused its discretion in denying the Rule 15(b) motion to amend, 42 U.S.C. § 1981 was a basis of recovery for the 199 2 fail ure-to-promote and retaliation claims. Because th e Title VII statutory cap does not-63-

applyto limit the recovery under 42 U.S.C. § 1981, th e district court should not have reduced the amount o f damages awarded pursuant to the Title VII statutory cap. See 42 U.S.C. § 1981a(b)(4); Johnson v. Metropolitan Sewe r District , 926 F. Supp. at 876. Nonetheless, we think the district court was correct to reduce the amount of damage s awarded by the jury because the amount was grossl y excessi ve. In effect, what the district court di d amountedto remittitur, which we review for clear abuse o f discr etion. See, e.g. , Kientzy v. McDonnell Dougla s Corp. , 990 F.2d at 1062. It i s not possible to ascertain what portion of the $300,000 is attributable t o compensatoryor punitive damages, so we will assume fo r purp oses of analysis that the entire amount was fo r punitive damages.

After carefully reviewing the evidence, we conclud e tha t, although an award of $1.75 million for emotiona l dis tress is grossly excessive, an award of $100,000 i s not. See Kimzey v. Wal-Mart Stores, Inc. , 107 F.3d at 57 0 ($35,000); Turic v. Holland Ho spitality, Inc. , 85 F.3d at 1215- 16 (listing cases in which damages for emotiona l distr ess ranged from $40,000 to $150,000); Kientzy v

. McDonnell Douglas Corp. , 990 F.2d at 1054 ($150,000); Rus h

v. Scott Specialty Gases, Inc. , 930 F. Supp. at 19 9 ($100,000).

Simil arly, we conclude that, although an award of $7 milli on for punitive damages is grossly excessive, a n award o f $300,000 is not. Factors to consider i n determining the reasonableness of a punitive damages awar d include the degree of reprehen sibility of the defendant’s conduct, the ratio or relationship between the actual har m inflictedon the plaintiff and the punitive damages award ,-64-

and civil penalties authorized or imposed for comparable misconduct. BWM of North America, Inc. v. Gore , 116 S

. Ct. 1589, 1598-99 (1996); see Pulla v. Amoco Oil Co. , 72 F.3d 648, 659 (8th Cir. 1995) (White, J.). Nash Finch’s conduct was reprehensible and involved retaliation and at least reckless disregard of fe deral protected rights. It didnot involve violence or the threat of violence, but i t didinvolve trickery or deceit. The ratio or relationshi p between the reduced punitive d amages award and the actual harm inflicted-65-

as meas ured by the reduced amount of back pay an d
compensatorydamages is a relatively unremarkable 3:1

. See BMW of North America, Inc. v. Gore , 116 S. Ct. at 160 2 (noti ng 4:1 ratio of punitive damages to compensator y dama ges was described as “close to the line” in Pacifi c Mut ual Life Insurance Co. v. Haslip , 499 U.S. 1, 23-2 4 (1991), and that relevant rati o was not more than 10:1 in TXO Production Corp. v. Alliance Resources Corp. , 509 U.S

. 443 , 462 (1993)); Kimzey v. Wal-Mart Stores, Inc. , 10 7 F.3d at 577-78 (reducing punitive damages award from $ 5 millionto $350,000, an amount 10 times the actual damage s
awa rd of $35,000, which the court described as “low”)

. Finally, Title VII, which auth orizes or imposes liability for comparable misconduct, cap s compensatory and punitive damages at $300,000 (for the largest employers). 4 2 U.S.C

. § 1981a(b)(3)(D); see, e.g. , Rush v. Scot t Specialty Gases, Inc. , 930 F. Supp. at 202 (reducin g punitive damages award from $3 million to $300,000). We thi nk a $300,000 punitive damages award is an adequat e sanction and sufficient to deter future similar conduct, considering the size and assets of Nash Finch.

CONCLUSION

Insum, we hold the district court should have grante d the motion to amend the pleadings to conform to th e evid ence and thus should not have applied the Title VI I cap, 42 U.S.C. § 1981a(b)(3), to limit compensatory an d punitive damages. We also hold the district court did no t err in holding the November 19 90 failure-to-promote claim

was actionable under 42 U.S.C. § 1981 under Patterson , there was sufficient evidence of intentiona l discrimination and retaliation, and there was sufficient evide nce of malice or reckless indifference to suppor t-66-

punitive damages. Finally, we hold the awards of back pay and compensatory and punitive damages, as reduced by the district court, were supportedby sufficient evidence and were not excessive.

Ac cordingly, we affirm the judgment of the distric t court.-67-

BEAM, Circuit Judge, concurrin g in part and dissenting in part.

I concur in the result reached by the court and in th e opinion of the court except that I do not agree that the evidence was sufficient to submit the issue of punitiv e damages to the jury. Thus, any award for punitive damage s
was error . Since, as noted by the court, “[i]t is no t possible to ascertain what portion of the $300,000 [award ] is attributable to compensatory or punitive damages, ” inf ra at 33, I would assume, for purposes of analysis , that the entire amount was for compensatory purposes

. Accordingly, my bottom line of damages is the same as tha t of the court.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHT H CIRCUIT.