*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 States 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

____________

Before 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 against

Nash Finch Co. in his employment discrimination case but

reducing the amount of damages
-3-

awarded by the jury. For reversal, Kim argues the

district court erred in denying his motion to amend the

pleadings 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 cross-appeal, Nash Finch argues the district court

erred in holding (1) Kim’s claim that he was unlawfully

denied a promotion from leadman to foreman in November

1990 was actionable under 42 U.S.C. § 1981, (2) there was

sufficient evidence of intentional discrimination, (3)

there was sufficient evidence of retaliation, (4) there

was sufficient evidence of malice or reckless

indifference to support punitive damages, and (5) the

jury verdict awarding damages for lost wages and

compensatory damages was supported by sufficient evidence

or, in the alternative, was not excessive. For the

reasons discussed below, we affirm the judgment of the

district court. 

BACKGROUND FACTS

Nash Finch is a wholesale and retail food

distributor. In 1978 Kim, an American citizen of Korean

ancestry, began working as a grocery picker in Nash

Finch’s Cedar Rapids warehouse. A superintendent runs

the warehouse. During the period of time at issue Bill

Mund was the warehouse superintendent. The four

warehouse departments-- receiving, shipping, maintenance,

and transportation-- are each supervised by a salaried

“foreman.” By October 1979, Kim was one of six hourly

“leadmen” who assisted the warehouse shipping foreman;

Kim also acted as shipping foreman on Saturdays and

filled in when the shipping foreman was absent. The
-4-

shipping department has 80-90 employees; the full

shipping crew can consist of up to 70 employees; on

Saturdays, however, the shipping crew is smaller, about

25-40 employees. For more than 10 years, Kim received

“superior” or “outstanding” annual performance

evaluations. 

The position of shipping foreman became vacant in

November 1990 and in April 1992. Kim applied for both

vacancies, but in each instance Nash Finch promoted
-5-

someone else. The individual promoted in November 1990

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 individual

promoted in April 1992 was white, younger than Kim, had

not worked in the warehouse for 10 years, had been

trained by Kim, and had no formal education beyond high

school. In comparison, Kim was a college graduate and

the senior leadman in the shipping department. Nash

Finch told Kim that he had not been promoted because of

his inability to control costs and manhours, lack of

aggressiveness, difficulty in controlling large crews,

and poor temperament. When Kim objected to being passed

over for promotion, the Nash Finch EEO compliance officer

advised Kim to file a complaint or consult a lawyer. In

May 1992 Kim filed an employment discrimination charge

against Nash Finch with the Iowa Human Rights Commission

and the Equal Employment Opportunity Commission, alleging

Nash Finch unlawfully failed to promote him in November

1990 and in April1992 on the basis of race, national

origin and age. 

According to Kim, immediately after he filed his

employment discrimination charge in May 1992, Nash Finch

began to systematically retaliate against him. For

example, Nash Finch supervisors no longer assigned Kim to

fill in for the shipping foreman, gave him much lower

performance evaluations, orally warned him about his poor

“attitude” (toward management), characterized him as

unwilling to assume more job responsibility when he

declined a Sunday shipping crew assignment, placed him

under constant surveillance at work, and excluded him from

meetings at work. Nash Finch mischaracterized a September
-6-

1992 incident involving Kim and another employee as

race-based, gave Kim a written reprimand about the

incident, and placed the written reprimand in Kim’s

personnel file. Kim alleged Nash Finch fabricated the

race basis of the incident in order to discredit him when

the local civil rights commission was investigating his

(Kim’s) employment discrimination charge. In November

1992, after another incident involving a co-worker and

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 warehouse

operations with the
-7-

assistance of a consultant and discovered what it

regarded as productivity problems, particularly with

respect to the Saturday shipping crew, which Kim

supervised, and required Kim to attend special retraining

in order to improve productivity on Saturdays. Kim

regarded this special retraining as punitive and

humiliating in light of his status as a leadman,

seniority and experience. 

Kim continues to work for Nash Finch and has not been

discharged, demoted, reduced in compensation, or

reassigned; however, as noted above, he has received oral

and written reprimands and has been required to attend

special retraining. Brief for Appellee/ Cross-Appellant

at 1. 

DISTRICT COURT PROCEEDINGS

In November 1992 Kim received a right-to-sue letter

and filed this lawsuit in federal district court. In

count I Kim alleged that Nash Finch unlawfully

discriminated against him on the basis of race, color,

national origin, and age when it failed to promote him to

the position of shipping foreman in April 1992 in

violation of Title VII of the Civil Rights Act of 1964

(Title VII), as amended, 42 U.S.C. § 2000e, and the Age

Discrimination in Employment Act (ADEA), as amended, 29

U.S.C. § 621 et seq. In count II Kim alleged that Nash

Finch unlawfully discriminated against him on the basis

of race, color, national origin, and age when it failed

to promote him to the position of shipping foreman in
This claim was not barred by the two-year statute of limitations under Iowa

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 count

2

III Kim alleged that Nash Finch unlawfully retaliated

against him for filing an employment discrimination

charge in violation of Title VII, 42 U.S.C. § 2000e-3(a).

Kim sought back pay, promotion and other equitable

relief, and compensatory and 
-9-

punitive damages, as well as attorney’s fees and costs,

including expert witness fees. 

Nash Finch filed a motion for summary judgment,

asserting that Kim had not been promoted because he had

no transportation experience and because of his

relatively weak management skills. The district court

denied the motion for summary judgment and in September

1994 the case was tried to a jury. At trial Mund

testified that he never seriously considered Kim for

promotion because Kim lacked personal loyalty to him

(Mund). Kim, his wife and his son testified about how

Kim had suffered physically and emotionally from his

adverse treatment by Nash Finch. Kim developed high

blood pressure and headaches from stress and became

anxious, withdrawn and depressed; he had difficulty

sleeping and felt humiliated and ostracized at work. 

In special verdicts, the jury found Nash Finch had

discriminated against Kim on the basis of race but not

age in failing to promote him to shipping foreman in

November 1990 and in April 1992, and had retaliated

against him for filing employment discrimination charges.

The jury awarded Kim $15,000 in lost wages and benefits

and $100,000 in non-economic damages (for emotional

distress and loss of enjoyment of life) for the 1990

promotion claim, $21,000 in lost wages and benefits and

$150,000 in non-economic damages for the 1992 promotion

claim, and $1.5 million in non-economic damages for the

retaliation claim. Finally, the jury awarded Kim $7

million in punitive damages. The special verdict

permitted the jury to award punitive damages for either

the 1992 promotion or the retaliation claim. Both

parties filed post-trial motions. 
-10-

The district court denied Nash Finch’s motion for

judgment as a matter of law or, in the alternative, for

new trial, reduced the damages award, granted in part

Kim’s motion for equitable relief (for promotion to

shipping foreman when available and front pay at the rate

of $447 per month), denied Kim’s motion for prejudgment

interest, granted Kim’s motion for attorney’s fees and

expenses, and entered judgment accordingly. Jin Ku Kim

v. Nash Finch Co., No. C92-0204 (N.D. Iowa Apr. 13, 1995)
-11-

(opinion and order). The district court held the

evidence was sufficient to support the jury’s finding

that Nash Finch had intentionally discriminated against

Kim on the basis of race, color or national origin when

it failed to promote him in November 1990 and in April

1992. Slip op. at 4-6. The district court also held the

evidence was sufficient to support the jury’s finding

that Nash Finch had retaliated against Kim for filing an

employment discrimination charge. Id. at 6-10. The

district court also held that the evidence was sufficient

to support the jury’s finding that Nash Finch had acted

with malice or reckless indifference to Kim’s federally

protected right not to be retaliated against for filing

a civil rights complaint. Id. at 11-12. 

As discussed below, the parties disputed whether the

1992 promotion and retaliation claims were submitted

under both Title VII and 42 U.S.C. § 1981 or only Title

VII. The district court found that Kim had waived any

argument that these claims had been brought under both

statutes because Kim did not object to the jury

instructions and the special verdict forms which

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 jury

instructions). The district court also held that the

Title VII statutory damages cap applied, thus limiting

the award for non-economic damages and punitive damages

for those claims to a maximum of $300,000. Id. at 16

(jury awarded $150,000 for the 1992 promotion claim and

$1.5 million for the retaliation claim and $7 million in

punitive damages; it was not disputed that Nash Finch has

more than 500 employees; see 42 U.S.C. § 1981a(b)(4)

($300,000 maximum for compensatory and punitive
The district 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 retaliation

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-

damages)). The district court did not review the

punitive damages award for excessiveness. Id. at 14

(noting nonetheless that $300,000 was not excessive in

view of duration of discrimination, level of retaliation

and financial well-being of employer). This appeal and

3

cross-appeal followed. 
-13-

ACTIONABLE § 1981 CLAIM-- 1990 PROMOTION

Nash Finch argues the district court erred in denying

its motion for judgment as a matter of law on the 1990

promotion claim. Nash Finch argues the 1990 promotion

claim is not actionable under 42 U.S.C. § 1981 because

the promotion from leadman to foreman did not involve a

significant change in duties, compensation or

responsibility. We disagree. 

In Patterson v. McLean Credit Union, 491 U.S. 164,

176-77, 182 (1989) (Patterson), the Supreme Court held 42

U.S.C. § 1981 prohibited racial discrimination in the

formation of an employment contract but did not apply to

“problems that may arise later from the conditions of

continuing employment,” that is, in the employment

relationship. After Patterson, courts held that claims

alleging discriminatory discharge could not be brought

under § 1981. E.g., Taggart v. Jefferson County Child

Support Enforcement Unit, 935 F.2d 947, 948 (8th Cir.

1991) (banc). Congress later enacted the Civil Rights

Act of 1991 in part to correct what it regarded as the

Court’s erroneous construction of the scope of 42 U.S.C.

§ 1981 in Patterson. In § 101(2)(b) of the Act, 42

U.S.C. § 1981(b), Congress redefined the term “make and

enforce contracts” specifically to include “the making,

performance, modification, and termination of contracts,

and the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship.” The 1991

Act became effective on November 21, 1991. However, in

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994), the

Supreme Court held that § 101 should not be applied

retroactively to pending cases or pre-enactment conduct.

For this reason, Patterson and not the 1991 Act applies
-14-

to the 1990 claim because it occurred before November 21,

1991, the effective date of the 1991 Act. 
-15-

Patterson held that the denial of a promotion is not

actionable under § 1981 unless “the promotion rises to

the level of an opportunity for a new and distinct

relation between the employee and the employer.” 491

U.S. at 185, citing Hishon v. King & Spaulding, 467 U.S.

69 (1984) (challenging refusal of law firm to promote

associate to partnership under Title VII). Not every

refusal to promote violates Patterson because “each step

down the path of one’s career does not create a new and

distinct relation with the employer for purposes of the

Patterson test.” Fray v. Omaha World Herald Co., 960

F.2d 1370, 1373 (8th Cir. 1992) (footnote omitted).

“[Patterson] strongly suggests that, in addition to an

increase in pay and duties, an actionable promotion claim

must involve a meaningful, qualitative change in the

contractual relationship.” Sitgraves v. Allied-Signal,

Inc., 953 F.2d 570, 573 (9th Cir. 1992) (noting as

examples of actionable promotion claim moves from

non-supervisory to supervisory position and from hourly

to salaried compensation); see Rodriguez v. General

Motors Corp., 27 F.3d 396, 399-400 (9th Cir. 1994)

(holding essentially lateral change not actionable

refusal to promote); Butts v. City of New York Department

of Housing Preservation & Development, 990 F.2d 1397,

1411-12 (2d Cir. 1993) (Butts) (noting inquiry should not

be confined to job titles but should examine actual

changes in responsibility and status); cf. Winbush v.

Iowa, 66 F.3d 1471, 1477 (8th Cir. 1995) (issue noted but

not decided). 

We agree with the district court that the promotion

from leadman to foreman involved a sufficiently new and

fundamentally different contractual relationship to
-16-

constitute an actionable promotion claim under § 1981.

This was not the kind of promotion “understood by the

parties to be given routinely upon satisfactory job

performance.” Butts, 990 F.2d at 1412. Nor was it the

kind of promotion that involved merely “moving an employee

from one position to another as part of a reallocation of

personnel resources, not involving a substantial increase

in status or responsibility.” Id. The promotion involved

a change from limited supervisory duties and limited

authority over employees to additional supervisory duties

and greater authority, from hourly to salaried

compensation, and from non-management to management

status, as
-17-

well as an increase in pay and a change of position in the

chain of authority. There were many leadman positions

(six in the shipping department alone) but only four

foreman positions, each in charge of one department in the

warehouse, who reported directly to the superintendent.

Unlike leadmen, foremen performed traditional supervisory

functions like making work assignments, planning and the

hiring, evaluation and discipline of employees. The

relatively modest difference in pay between the two

positions and the supervisory nature of both positions did

not outweigh the other factors. The district court did

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 make a submissible case that he was not promoted in

1990 and 1992 because of intentional discrimination on the

basis of race, color or national origin. This argument

has two points. First, Nash Finch argues instruction No.

12 incorrectly permitted the jury to find in favor of Kim

if it found only that Nash Finch’s asserted legitimate,

nondiscriminatory reason for not promoting him was false.

Nash Finch argues that the instruction failed to require

the jury to find that the asserted reason was a pretext

for intentional discrimination. Nash Finch also argues

there was insufficient evidence of intentional

discrimination, that is, that it failed to promote Kim

because of race, color or national origin. In sum, Nash

Finch argues that Kim failed to show that its articulated

legitimate, nondiscriminatory reason was false and that,

even assuming it was false, such a finding alone cannot
-18-

support a finding of intentional discrimination. Nash

Finch’s argument correctly states the applicable law;

however, we hold the instruction was not erroneous and the

evidence was sufficient to support the jury’s verdict that

Nash Finch intentionally discriminated against Kim. 

The analysis applicable to Title VII disparate

treatment and 42 U.S.C. § 1981 claims in employment cases

is the familiar three-part framework initially set out in
-19-

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06

(1973) (McDonnell Douglas), and further refined in Supreme

Court cases, most recently St. Mary’s Honor Center v.

Hicks, 509 U.S. 502 (1993) (Hicks). This court recently

clarified the 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 disparate

treatment claim and a § 1981 claim are identical. Hicks,

509 U.S. at 506 n.1 (noting McDonnell Douglas framework

also applies to claims of purposeful employment

discrimination on the basis of race under 42 U.S.C. §

1983). First, the plaintiff must establish a prima facie

case. Second, if the plaintiff establishes a prima facie

case, the defendant must “rebut the presumption of

discrimination [raised by the prima facie case] by

producing evidence that the plaintiff was rejected, or

someone else was preferred, for a legitimate,

nondiscriminatory reason.” Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 254 (1981) (Burdine)

(noting the employer must only articulate legitimate,

nondiscriminatory reason, but need not persuade the

factfinder that it was actually motivated by the proffered

reasons). Third, if the defendant carries this burden,

the plaintiff is entitled to the opportunity to show that

the defendant’s articulated reason was in fact “not the

true reason for the employment decision” and a “pretext

for discrimination.” Id. at 256; see Hicks, 509 U.S. at

216 & n.6 (“pretext for discrimination” means both that

the proffered reason was false and that discrimination was

the real reason). 

“This burden [of demonstrating that the proffered

reason was not the true reason for the employment
-20-

decision] now merges with the ultimate burden of

persuading the [trier of fact] that [the plaintiff] has

been the victim of intentional discrimination.” Burdine,

450 U.S. at 256. The plaintiff can establish that he or

she has been the victim of intentional discrimination

“either directly by persuading the [trier of fact] that a

discriminatory reason more likely motivated the employer

or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.” Id. 
-21-

The factfinder’s disbelief of the reasons put

forward by the defendant (particularly if

disbelief is accompanied by a suspicion of

mendacity) may, together with the elements of

the prima facie case, suffice to show

intentional discrimination. Thus, rejection of

the defendant’s proffered reasons, will permit

the trier of fact to infer the ultimate fact of

intentional discrimination, and . . . , upon

such rejection, “[n]o additional proof of

discrimination is required.” 

Hicks, 509 U.S. at 511 (footnote omitted). 

Thus, according to Hicks, when the

plaintiff’s evidence . . . challenges the

defendant’s articulated nondiscriminatory

reason, such evidence may serve as well to

support a reasonable inference that

discrimination was a motivating reason for the

employer’s decision. As the Supreme Court has

observed, “when all legitimate reasons for

rejecting an applicant have been eliminated as

possible reasons for the employer’s actions, it

is more likely than not the employer, who we

generally assume acts only with some reasons,

based [its] decision on an impermissible

consideration such as [race].”

. . . .

In sum, when the employer produces a

nondiscriminatory reason for its actions, the

prima facie case no longer creates a legal

presumption of unlawful discrimination. The

elements of the prima facie case remain,

however, and if they are accompanied by evidence

[showing that the defendant’s proffered

explanation is false] and disbelief of the

defendant’s proffered explanation, they may

permit the jury to find for the plaintiff. This
-22-

is not to say that, for the plaintiff to

succeed, simply proving [that the defendant’s

proffered explanation is false] is necessarily

enough. We emphasize that evidence [that the

defendant’s proffered explanation is false] will

not be enough to make a submissible case if it

is, standing alone, inconsistent with a

reasonable inference of [unlawful]

discrimination. [T]he plaintiff must still

persuade the jury, from all the facts and

circumstances, that the employment decision was

based upon intentional discrimination.
-23-

Ryther, 108 F.3d at 836-38 (citation and footnotes

omitted). “Thus, Hicks makes it clear that the plaintiff

must show ‘both that the [proffered] reason was false,

and that discrimination was the real reason.’” Id. at

838 n.5, citing Hicks, 509 U.S. 515. “It is not enough,

in other words, to disbelieve the employer; the

factfinder must believe the plaintiff’s explanation of

intentional discrimination.” Hicks, 509 U.S. at 519. 

Jury Instructions

We address the instruction issue first. “[W]e review

the district court’s jury instructions for abuse of

discretion and on review must determine simply ‘whether

the instructions, taken as a whole and viewed in light of

the evidence and applicable law, fairly and adequately

submitted the issues in the case to the jury.’” Karcher

v. Emerson Electric Co., 94 F.3d 502, 510 (8th Cir. 1996)

(citing 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 instructions simply

because they are technically imperfect or are not a model

of clarity.” Hastings v. Boston Mutual Life Insurance

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 of

the parties.” Id. 

Instruction No. 12 provided in part that “[a] false or

pretextual reason for the decision not to promote the

plaintiff is one form of evidence from which you may, but

are not required, to find that the defendant discriminated

against the plaintiff.” Nash Finch argues that this part

of instruction No. 12 improperly permitted the jury to
-24-

find in favor of Kim if it found only that Nash Finch’s

asserted legitimate, nondiscriminatory reason for not

promoting him was false. We disagree because, when read

as a whole, instruction No. 12 correctly set forth the

applicable law. The paragraph immediately preceding the

sentence to which Nash Finch objected provided that “you

may find Defendant Nash Finch intentionally discriminated

against Plaintiff Jin Kim if you reject the Defendant’s

stated reasons for not promoting him and you find

Defendant’s stated reasons for its decision not to promote

Plaintiff were given to hide an intent by Nash
-25-

Finch to discriminate on the basis of his race, color or

national origin.” This part of instruction No. 12

correctly instructed the jury, as required by Hicks, that

it had to find both that the stated reason was false and

that intentional discrimination on the basis of race was

the real reason in order to return a verdict in favor of

Kim, not only that the stated reason was false. Ryther,

108 F.3d at 838 & n.5 (noting Hicks makes it clear that

the plaintiff must show both that the reason was false and

that intentional discrimination was the real reason). The

instructions for the 1990 promotion claim (No. 9) and the

ADEA claim (No. 14) similarly provided that the jury could

find race or age was a determining factor if it found Nash

Finch’s stated reason for its decision was “not the true

reason, but [was] a ‘pretext’ to hide discriminatory

motivation.” These instructions correctly premised

liability on a finding of discrimination and not merely on

a finding that Nash Finch’s proffered reason was false.

Sufficiency of the evidence-- failure to promote

Next, we address the sufficiency of the evidence.

Nash Finch argues that it is entitled to judgment as a

matter of law because Kim failed to make a submissible

case that racial discrimination motivated the decisions

not to promote him. Nash Finch argues that there was

evidence that its proffered reason was false but no

evidence of racial discrimination. We disagree. 

“[W]e will not reverse a jury’s verdict for

insufficient evidence unless, after viewing the evidence

in the light most favorable to the verdict, we conclude

that no reasonable juror could have returned a verdict 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]hen

that evidentiary basis becomes apparent, it [is]

immaterial that the court might draw a contrary inference

or feel that another conclusion is more reasonable.”

Lavender v. Kurn, 327 U.S. 645, 653 (1946). “Whether an

issue was properly before the jury, however, is a legal

question which is
-27-

reviewed de novo.” Kimzey v. Wal-Mart Stores, Inc., 107

F.3d 568, 573 (8th Cir. 1997) (citation omitted). 

We have reviewed the evidence in the light most

favorable to Kim as the prevailing party, assumed that all

conflicts in the evidence were resolved in his favor,

assumed as proved all facts that his evidence tended to

prove, and given him the benefit of all reasonable

inferences that may reasonably be drawn from the facts

proved. We hold the record as a whole-- specifically, the

combination of the undisputed evidence as to the elements

of the prima facie case and the strong evidence that Nash

Finch’s proffered reason was false, which, when considered

with the strong evidence of retaliation-- clearly provided

sufficient evidence as a matter of law to allow the jury

to find Nash Finch intentionally discriminated against Kim

on the basis of race in failing to promote him. This

reasonable inference is the logical result of the

application to the evidence of the McDonnell Douglas

analytical framework for the allocation of the burden of

production and the order for the presentation of proof.

It was not disputed that Kim established a prima facie

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 unlawful

discrimination. Because Nash Finch articulated

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 prima facie case remained in

the case. The evidence refuted Nash Finch’s articulated

nondiscriminatory reasons and strongly suggested that Nash
-28-

Finch had lied about those reasons. Nash Finch conceded

at trial that Kim was qualified for promotion but argued

the successful candidates were better qualified. There

was evidence that Kim was relatively better qualified for

promotion in terms of education, seniority and supervisory

experience than the successful candidates. There was also

evidence from which the jury could conclude that Nash

Finch’s managers were not particularly credible. Mund

initially told Kim that the 1990 promotion had
-29-

been made at a higher level even though Mund had made the

decision himself. Mund then told Kim that he had not been

promoted because he was not qualified. However, Mund

testified at trial that he never seriously considered Kim

for promotion because Kim lacked personal loyalty to him

(Mund). 

The evidence challenged Nash Finch’s articulated

nondiscriminatory reasons for not promoting Kim and

supported a reasonable inference that unlawful

discrimination was a motivating reason for Nash Finch’s

failure to promote Kim. This evidence was sufficient to

permit the jury to infer the ultimate 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 rejecting an applicant have been eliminated as

possible reasons for the employer’s actions, it is more

likely than not the employer, who we generally assume acts

only with some reasons, based [its] decision on an

impermissible consideration such as race.” Furnco

Construction Co. v. Waters, 438 U.S. 567, 577 (1978).

This is not a case in which the evidence showing the

employer’s proffered reason was false was inconsistent

with a reasonable inference of unlawful discrimination.

Here, Nash Finch contended the real reason Kim was not

promoted was that the successful candidates were better

qualified. Kim’s evidence showed that the proffered

reason was false; it did not show that some reason other

than unlawful discrimination was the real reason he was

not promoted. See Ryther, 108 F.3d at 837 n.4 (discussing

cases in which evidence showing employer’s proffered

reason was false was inconsistent with reasonable

inference of unlawful discrimination and citing Rothmeier

v. Investment Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir.
-30-

1996) (evidence showed real reason for discharge was

confrontation about SEC violations), Barber v. American

Airlines, Inc., 791 F.2d 658, 660 (8th Cir.) (evidence

showed real reason for disparate treatment was not age

discrimination), cert. denied, 479 U.S. 885 (1986), and

Visser v. Packer Engineering Assocs., 924 F.2d 655, 657

(7th Cir. 1991) (banc) (explaining “pretext” in employment

law means a reason that employer offers for action claimed

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 age

discrimination but plaintiff’s loyalty to company rather

than to CEO personally)). 

In addition to the elements of the prima facie case

and the evidence showing Nash Finch’s proffered reason was

false, there was also evidence that, out of more than

3,500 employees, only 2 management employees in 25 years

were non-white. Those employees were not warehouse

supervisory employees; they were assistant retail grocery

store managers. There was also evidence that the only

Asian-American employee at the Cedar Rapids warehouse

other than Kim was employed as a janitor. There was also

some evidence that Nash Finch disciplined Kim more

severely than non-Asian employees for comparable incidents

and that the disciplinary action was in retaliation for

his filing discrimination charges. As noted above, direct

evidence of intentional discrimination was not required;

case law recognizes that intentional discrimination may be

proven by circumstantial evidence because “[t]here will

seldom be ‘eyewitness’ testimony as to the employer’s

mental processes.” United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983). “After

all, the McDonnell Douglas framework exists to provide

discrimination plaintiffs a way to prove their case when

they do not have ‘explicit, inculpatory evidence of

discriminatory intent.’” Shannon v. Ford Motor Co., 72

F.3d 678, 682 (8th Cir. 1996), citing Hutson v. McDonnell

Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995). 

In sum, the record as a whole in this case-- the

evidence showing that Nash Finch’s proffered reason was

false, plus the evidence establishing the elements of the
-32-

prima facie case-- was sufficient to permit the jury

reasonably to find that Nash Finch intentionally

discriminated against Kim on the basis of race in refusing

to promote him to shipping foreman in November 1990 and in

April 1992. Consistent with Hicks, no additional evidence

of discrimination was required. The evidence in this case

presented inconsistent inferences to the jury, and the

resolution of this conflicting evidence was a matter for

the jury to resolve. E.g., Ryther, 108 F.3d at 845

(citing cases). The
-33-

district court did not err in denying Nash Finch’s motion

for judgment as a matter of law on the discrimination

claims. 

RETALIATION

Nash Finch next argues Kim failed to make a

submissible retaliation claim. Nash Finch argues that, as

a matter of law, Kim suffered no adverse employment action

because he was not demoted, terminated, reassigned, or

suspended, 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 employment

action, there was no evidence of a causal relationship

between to Kim’s filing a race discrimination charge and

any adverse employment action. Nash Finch also argues

that any adverse employment action was justified under the

circumstances. 

Like the substantive claim of racial discrimination,

a claim of retaliation, in a racial discrimination

context, can violate both Title VII and 42 U.S.C. § 1981.

Setser v. Novack Investment Co., 638 F.2d 1137, 1146-47

(8th Cir. 1981) (Setser) (subsequent history omitted)

(holding retaliation by employer against plaintiff for

filing race-based EEOC complaint 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) (applying Setser), cert. denied,

455 U.S. 976 (1982). We apply the same McDonnell Douglas

analytical framework to a retaliation claim under § 1981

and Title VII. See, e.g., Evans v. Kansas City, Missouri,

School District, 65 F.3d 98, 101 (8th Cir. 1995) (§ 1981
-34-

retaliation claim), cert. denied, 116 S. Ct. 1319 (1996);

Kobrin v. University of Minnesota, 34 F.3d 698, 704 (8th

Cir. 1994) (Title VII retaliation claim) (Kobrin). The

elements of a retaliation claim under § 1981 and Title VII

are (1) protected activity, (2) subsequent adverse

employment action, and (3) a causal relationship between

the two. See Barge v. Anheuser-Busch, Inc., 87 F.3d 256,

259 (8th Cir. 1996) (§ 1981 retaliation claim); Kobrin, 34

F.3d at 704 (Title VII retaliation claim). 
-35-

Adverse employment action

Nash Finch argues that the district court erred in

denying its motion for judgment as a matter of law because

Kim failed to show any adverse employment action. Nash

Finch argues Kim was not demoted, terminated, reassigned,

or suspended, did not lose any compensation or privileges,

and in fact is still employed by Nash Finch. We hold Nash

Finch’s actions did rise to the level of adverse

employment action. 

Typically, it is obvious whether an employer took

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

disadvantaged and interfered with employee’s ability to

perform her job). What happened to Kim was much “‘more

disruptive than a mere inconvenience or an alteration of

job responsibilities’ [or] [c]hanges in duties or working

conditions that cause no materially significant

disadvantage.” Harlston v. McDonnell Douglas Corp., 37

F.3d 379, 382 (8th Cir. 1994) (citation omitted) (no

adverse employment action where plaintiff was reassigned

without diminution in title, salary or benefits); see

Thomas v. St. Luke’s Health Systems, Inc., 869 F. Supp.

1413, 1435 (S.D. Iowa 1994) (holding employer’s initial

demands that employee take drug test, which was

subsequently withdrawn, and accept another position had no

impact on continued employment and did not rise to level

of adverse employment action), aff’d, 61 F.3d 908 (8th

Cir. 1995) (table) (No. 94-4081). Kim’s duties had been

reduced; he received much lower performance evaluations
-36-

than he had received before filing his employment

discrimination charge; he was required to undergo special

remedial training. There was also evidence that Nash

Finch had “papered” his personnel file with negative

reports, including two written reprimands. These are the

kind of serious employment consequences that adversely

affected or undermined Kim’s position, 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 “adverse

employment action” because Kim essentially claimed that

Nash Finch had systematically retaliated against him, that

is, that all the acts were taken in response to his filing

the employment discrimination charge and were thus

connected to one another. Cf. Caliendo v. Bentsen, 881 F.

Supp. 44, 48 (D.D.C. 1995) (alleging personnel actions

such as removal from undercover operation, failure to

receive monetary award, removal as acting group

supervisor, receipt of letter of reprimand, etc.

constituted series of adverse employment actions in

retaliation for EEOC activities). We hold that, as a

matter of law, Nash Finch’s conduct, which included

reduction of duties, disciplinary action and negative

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 law

because there was no evidence of a causal connection

between Kim’s filing a race discrimination charge and any

adverse employment action and that any adverse employment

action was justified under the circumstances. We have

reviewed the evidence in the light most favorable to Kim

as the prevailing party, assumed that all conflicts in the

evidence were resolved in his favor, assumed as proved all

facts that his evidence tended to prove, and given him the

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 case

and the evidence showing that Nash Finch’s proffered
-38-

reason was false-- provided a sufficient basis from which

reasonable jurors could find that Nash Finch retaliated

against Kim for filing an employment discrimination

charge. This permissible inference is the logical result

of the application to the evidence of the McDonnell

Douglas analytical framework for the allocation of the

burden of production and the order for the presentation of

proof. 
-39-

Filing an employment discrimination charge is activity

protected by Title VII, §704(a), 42 U.S.C. § 2000e–3(a).

Nash Finch knew in May 1992 that Kim had filed an

employment discrimination charge. In fact, Nash Finch

justified disclosure of Kim’s personnel file, which

contained a report of a disciplinary action based on a

race-related incident, as part of its response to the

local civil rights commission investigation. Kim had

received high performance evaluations and had had no

disciplinary problems. However, after Kim filed the

employment discrimination charge, his Saturday and fill-in

shipping foreman duties were immediately eliminated, he

began to receive markedly lower performance evaluations,

he was orally cautioned about a poor attitude toward

management, he was placed under surveillance and excluded

from meetings at work, he was disciplined following a

September 1992 incident in which Nash Finch found Kim had

made racial slurs against a co-worker, and in late 1993 he

was required to participate in special remedial training.

This circumstantial evidence-- that the employer was aware

of the protected activity and that adverse employment

action “followed the protected activity so closely in time

as to justify an inference of retaliatory motive”-- was

sufficient to establish the requisite causal connection

between the protected activity and the adverse employment

action. Rath v. Selection Research, 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 EEOC

claim to alleged harassment, denial of assistance with

job-related tasks, or denial of disability benefits).
-40-

Nash Finch defended its post-May 1992 actions as a

legitimate, continuing “dialogue” between an employee and

management about adherence to company work rules and

respect for company equal employment opportunity policies.

However, Kim produced evidence that refuted the negative

reports in his personnel file, including evidence that

Nash Finch had “papered” his personnel file with negative

reports. Some of the negative reports involved petty and

insignificant incidents; however, some of the negative

reports supported Nash Finch’s claim that Kim lacked

management ability and
-41-

had refused opportunities for additional supervisory

responsibility. More seriously, as noted above, there was

evidence that the initial reports about the September 1992

incident did not include any reference to racial

discrimination. However, in November 1992, after Kim had

requested a right-to-sue letter, senior management issued

a written reprimand to Kim about the September 1992

incident. This written reprimand specifically described

the racial context of the incident and stated that the

company would not tolerate discrimination which would be

in violation of Title VII and that Kim’s actions had

probably violated his co-worker’s civil rights. The jury

could have reasonably found that Nash Finch placed the

written reprimand in Kim’s personnel file in order to

discredit Kim when the local civil rights commission was

investigating his employment discrimination charge. There

was also evidence that Nash Finch did not handle in the

same way a similar dispute about work assignments

involving the same co-worker and another foreman and a

complaint about sexual harassment by another employee.

Unlike the incident involving Kim, these incidents did not

result in written reprimands. 

In sum, we hold the evidence as a whole-- evidence

that the employer’s proffered reasons were false, as well

as the evidence establishing the elements of the prima

facie case-- was sufficient to permit the jury to find the

ultimate fact of retaliation. Consistent with Hicks, no

additional evidence of retaliation was required. The

evidence in this case presented inconsistent inferences to

the jury, and the resolution of this conflicting evidence

was a matter for the jury to resolve. The district court

did not err in denying Nash Finch’s motion for judgment as

a matter of law on the retaliation claim. 
-42-

AMENDMENT OF PLEADINGS

This is Kim’s principal contention on appeal. Kim

argues the district court abused its discretion in denying

his motion to amend his pleadings to conform to the

evidence under Fed. R. Civ. P. 15(b) by adding 42 U.S.C.

§ 1981 as a theory for recovery for the 1992 promotion and

retaliation claims. Nash Finch, however, characterizes

this issue as an instruction issue and argues the

instructions and the special verdict forms submitted the

1992 promotion and retaliation claims to the jury under

Title VII only. Nash Finch argues the district court

correctly concluded that Kim’s failure to object to the

instructions or the special verdict forms under Fed. R.

Civ. P. 51 waived any argument that those claims should

have been submitted to the jury under § 1981 as well as

Title VII. 

Whether the 1992 promotion and retaliation claims

should have been (or actually were) submitted to the jury

under § 1981 as well as Title VII is critical because

compensatory and punitive damages are “capped” under Title

VII but not under §1981. Thus, under Title VII, Kim’s

compensatory and punitive damages would be limited to

$300,000, but the amount of damages could be much greater

under § 1981. (The jury awarded Kim a total of $8,650,000

for compensatory and punitive damages for the 1992

promotion and retaliation claims.) This is because 42

U.S.C. § 1981a(b)(3)-- the statutory cap-- limits the

amount of any award of compensatory and punitive damages

for Title VII claims for intentional discrimination. Cf.

Kimzey v. Wal-Mart Stores, Inc., 107 F.3d at 575-76

(applying statutory cap to Title VII claims but not to

state anti-discriminatory claims); Luciano v. Olsten
The Iowa civil rights statute does allow for compensatory damages but not

4

punitive damages. E.g., Chauffeurs Local Union No. 238 v. Iowa Civil Rights

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.3d 210 (2d Cir. 1997). However, the Title 4

VII statutory cap does not apply to § 1981 claims; the

1991 Civil Rights Act, which made
-44-

compensatory and punitive damages available under Title

VII, specifically provides that “[n]othing in this section

shall be construed to limit the scope of, or the relief

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.

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

Kan. 1994) (reviewing legislative history of § 1981a(a)(1)

as expanding remedies available under Title VII for

intentional discrimination); cf. Reynolds v. Octel

Communications Corp., 924 F. Supp. 743, 747 (N.D. Tex.

1995) (holding recovery of both liquidated damages under

ADEA and punitive damages under Title VII would be double

recovery for same conduct); Bradshaw v. University of

Maine System, 870 F. Supp. 406, 407-08 (D. Me. 1994)

(holding plaintiff who could have but did not plead race

discrimination claim under §1981 was not barred from

bringing Title VII race discrimination claim for

compensatory and punitive damages by § 1981a). 

As a threshold matter, we do not agree that Kim waived

this argument by failing to object to the instructions or

the special verdict forms. The focus of Kim’s argument is

not on the jury instructions or the special verdict forms

themselves (indeed, Kim argues he had no grounds to object

to the jury instructions or the special verdict forms

because they correctly stated the applicable law), but on

the denial of his motion to amend the pleadings to conform

to the evidence. Cf. City of St. Louis v. Praprotnik, 485

U.S. 112, 119-20 (1988) (holding failure to timely object

to jury instructions was no obstacle to appellate review

of same legal issue raised in motions for summary judgment

and directed verdict). Motions to amend the pleadings to

conform to the evidence under Rule 15(b) can be made at
-45-

any time, even after judgment. If the issue of § 1981

liability was tried by implied consent, the district court

should have considered it raised by the pleadings and

should have allowed amendment upon Kim’s request. 

Amendments are allowed when the parties have

had actual notice of an unpleaded issue and have

been given an adequate opportunity to
-46-

cure any surprise resulting from the change in

the pleadings. And, when evidence relating to

issues outside the pleadings is introduced and

tried without objection, the parties will be

deemed to have acquiesced. 

Nielson v. Armstrong Rubber Co., 570 F.2d 272, 275 (8th

Cir. 1978) (citations omitted). 

An amended complaint that “merely amplifies some

of the allegations that have been proven” should

be allowed. On the other hand, however, a

district court is not required to grant a motion

to amend on the basis of some evidence that

would be relevant to the new claim if the same

evidence was also relevant to a claim originally

pled. The introduction of such evidence does

“not provide the defendant any notice” that the

implied claim was being tried.

Gamma-10 Plastics, Inc. v. American President Lines,

Ltd., 32 F.3d 1244, 1256 (8th Cir. 1994) (citations

omitted), cert. denied, 513 U.S. 1198 (1995). 

In the present case, the same evidence relevant to the

new theory of recovery-- § 1981-- was relevant to the

theory of recovery originally pled-- Title VII. This is

because, as discussed above, Title VII and § 1981 set

forth parallel, substantially identical, legal theories of

recovery in cases alleging intentional discrimination in

employment on the basis of race. This is particularly so

after the enactment of the 1991 Civil Rights Act. Before

1991, compensatory and punitive damages were available

under § 1981 but not under Title VII. Among other things,

the 1991 Civil Rights Act expanded the definition of “make

and enforce contracts” in § 1981 to include the terms and
-47-

conditions of employment, including discharge, added the

right to jury trial to Title VII, and, most importantly,

expanded the remedies available to Title VII plaintiffs to

include compensatory damages (for emotional pain,

suffering, mental anguish, etc.) and punitive damages.

Compensatory and punitive damages are only available under

Title VII if the plaintiff cannot recover under § 1981.

42 U.S.C. § 1981a(a)(1). The
-48-

elements of claims alleging disparate treatment on the

basis of race under Title VII and intentional employment

discrimination on the basis of race under § 1981 are

identical. Hicks, 509 U.S. at 506 n.1. The standard for

punitive damages is the same under Title VII, 42 U.S.C. §

1981a(b)(1) (malice or reckless indifference to federally

protected rights), and § 1981. E.g., Kolstad v. American

Dental Ass’n, 323 U.S. App. D.C. 402, 108 F.3d 1431, 1437

(1997) (holding standard of proof for punitive damages

under 42 U.S.C. § 1981a is the same as that previously

established for punitive damages under 42 U.S.C. §§ 1981

and 1983), citing Smith v. Wade, 461 U.S. 30, 56 (1983) (§

1983), and Williamson v. Handy Button Machine Co., 817

F.2d 1290, 1296 (7th Cir. 1987) (§ 1981). The elements of

a retaliation claim under § 1981 and Title VII are the

same as well. See Barge v. Anheuser-Busch, Inc., 87 F.3d

at 259 (§ 1981 retaliation claim); Kobrin, 34 F.3d at 704

(Title VII retaliation claim). However, there are still

differences between the two statutes. They are not

co-extensive in coverage (for example, Title VII does not

cover all employers). Title VII requires exhaustion of

administrative remedies, and the statutes of limitations

are different. Most importantly, the amount of

compensatory and punitive damages is limited under Title

VII but not under § 1981. 

“We have held that the admission of evidence bearing

on a pleaded issue cannot form the basis for an amendment

under Rule 15(b) unless the defendant knew of the

plaintiff’s intent to inject the unpleaded issues.”

McLaurin v. Prater, 30 F.3d 982, 986 (8th Cir. 1994). In

the present case there is no doubt that Kim intended the

evidence to support § 1981 in addition to Title VII

because the complaint itself alleged that Nash Finch’s
-49-

conduct had violated both Title VII and § 1981 (as well as

the ADEA and state law). Counts I and II, the

failure-to-promote counts, are broadly stated, but the

parties and the district court treated count I as alleging

the April 1992 failure-to-promote violated Title VII (as

well as the ADEA and state law) and count II as alleging

the November 1990 failure-to-promote violated § 1981.

Count III alleged Nash Finch retaliated against Kim for

filing an administrative charge. The caption and text of

Count I referred to Title VII; the caption and text of

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 for

the November 1990 failure-to-promote was precluded because

Kim did not file his administrative charge within 300

days; the complaint was timely filed (within 2 years) for

purposes of §1981). The caption and text of count III

alleged retaliation in violation of only Title VII

expressly, but, like count II, also incorporated the

previous paragraphs, including the reference therein to §

1981. The allegations in the complaint were sufficient to

put Nash Finch on notice of Kim’s claim that Nash Finch’s

conduct violated both Title VII and § 1981, certainly so

that Nash Finch cannot claim surprise. 

In addition, Kim moved several times to amend the

pleadings, in pre-trial proceedings (opposing Nash Finch’s

motion for summary judgment), immediately before trial

began and then during the trial. Each time Kim explained

why he sought to amend the pleadings to add § 1981 as a

theory for recovery for the April 1992 failure-to-promote

and retaliation claims, specifically referring to the

statutory cap on damages under Title VII but not under §

1981. Moreover, on the third day of trial, near the close

of the evidence, in ruling on Kim’s renewed motion, the

district court found that the case had been tried on the

basis of both § 1981 and Title VII and granted the motion

to amend the pleadings to add § 1981 as a theory of

recovery. It was only after the case had been submitted

to the jury (following an extensive instructions

conference during which, among other issues, the standard

of proof for punitive damages under Title VII and § 1981

was discussed) that the district court reconsidered and

then denied the motion to amend the pleadings. It would

seem that if any party was surprised by this turn of

events, it was Kim. 
-51-

We think the record shows that, even though § 1981 as

a theory of recovery was not pleaded, it was fairly tried

by the parties. Moreover, because of the substantial

identity of Title VII and § 1981 as theories of recovery

for claims of intentional discrimination, Nash Finch was

not prejudiced by the amendment because it had a fair

opportunity to defend § 1981 as a theory of recovery. We

are satisfied that, given the substantial identity of

Title VII and § 1981 as theories of recovery, the jury’s

finding
-52-

of intentional discrimination under Title VII also

constituted a finding of intentional discrimination under

§ 1981, even though the instructions for the April 1992

promotion and retaliation claims (as well as the punitive

damages instruction) did not refer to §1981. Thus, we

hold the district court abused its discretion in denying

the motion to amend the pleadings to conform to the

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 add

claim for punitive damages under general maritime law);

McLaurin v. Prater, 30 F.3d at 985-86 (suggesting on

remand that district court should grant motion to amend

complaint to add state law claims to constitutional claim

based on same facts); Corsica Livestock Sales, Inc. v.

Sumitomo Bank, 726 F.2d 374, 377-78 (8th Cir. 1983)

(holding abuse of discretion to deny motion to amend

complaint to add contract theory of recovery to rule

violation theory of recovery alleged in complaint);

Nielson v. Armstrong Rubber Co., 570 F.2d at 275-76

(holding abuse of discretion to deny motion to amend

complaint to add strict products liability claim to

negligence claim already alleged); cf. Oglala Sioux Tribe

v. Andrus, 603 F.2d 707, 714 (8th Cir. 1979) (noting

federal rules abolished “theory of the pleadings” doctrine

under which plaintiff must succeed on those theories that

are pleaded or not at all). 

Because § 1981 was a basis for recovery, the Title VII

cap on compensatory and punitive damages does not apply.

We turn next to Nash Finch’s damages arguments. 

COMPENSATORY DAMAGES
-53-

Nash Finch argues there was no evidence to support the

award of $21,000 in back pay (lost wages). Nash Finch

argues that the difference in pay between what Kim was

paid as a leadman and what he would have been paid had he

been promoted to foreman was at most $1932.81. Nash Finch

bases this calculation on the salaries paid to the two

employees who were promoted to the position of shipping

foreman in 1990 and 1992. We hold there was evidence to

support the award of $21, 000 in back pay. 
-54-

Kim presented evidence showing that the salaries of

comparable employees and evidence that there was no set

pay scale for the position, that Nash Finch considered a

number of facts in setting salaries, and that he had more

seniority and more experience in the shipping department

(including experience as the Saturday shipping foreman)

than the two individuals who were promoted in 1990 and

1992. 

Nash Finch also argues there was no evidence to

support the award of $447 per month in front pay. Nash

Finch argues that at most the difference in pay was about

$360 per month. Nash Finch bases 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 in salary was about $240 per

month.) The district court based the amount of the front

pay award on the back pay award ($21,000 over 47 months

(from November 1990 promotion to September 1994 verdict),

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

already held that the district court’s calculation of back

pay is supported by substantial evidence, and we cannot

disapprove of the calculation of front pay based on the

same evidence. 

Nash Finch also argues there was no medical or other

expert testimony to support the finding of emotional

distress. The jury awarded Kim $ 100,000 for mental

anguish and loss of enjoyment of life caused by the

November 1990 failure-to-promote under 42 U.S.C. § 1981.

Medical or other expert evidence is not required 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 circumstances
-55-

of a particular case, can suffice to sustain the

plaintiff’s burden in this regard.” Id. at 1215-16

(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 about

plaintiff’s deterioration in health, mental anxiety,

humiliation, and emotional distress resulting from

working conditions and discharge); Williams v. Trans

World Airlines, Inc., 660 F.2d 1267, 1272-73 (8th Cir.

1981) (testimony of plaintiff about humiliation or mental

distress); cf. Mardell v. Harleysville Life Insurance

Co., 31 F.3d 1221,
-56-

1232-33 (3d Cir. 1994) (violation of employee rights

frequently results in significant injury to dignity and

demoralizing impairment of self-esteem) (citing cases),

vacated on other grounds, 514 U.S. 1034 (1995); Rush v.

Scott Specialty Gases, Inc., 930 F. Supp. 194, 199 (E.D.

Pa. 1996) (testimony of plaintiff corroborated by

friends, family and expert witnesses, plus evidence of

physical suffering and need for professional care), rev’d

on other grounds, 113 F.3d 476 (3d Cir. 1997). Here,

Kim, his wife and his son testified about the anxiety,

sleeplessness, stress, depression, high blood pressure,

headaches, and humiliation he suffered after he was not

promoted and after he filed the employment discrimination

charge. We hold that medical or other expert evidence

was not required to prove emotional distress and that

there was sufficient evidence of emotional distress. 

PUNITIVE DAMAGES

Nash Finch argues the district court erred in

submitting the issue of punitive damages to the jury.

Nash Finch argues the district court should have applied

a heightened standard of proof for punitive damages

because the 1991 Civil Rights Act, 42 U.S.C. §

1981a(b)(1), limits the availability of punitive damages

to “exceptional circumstances of unusual bad motive that

transcends ordinary intentional misconduct.” Brief for

Appellee/ Cross-Appellant at 46. 

Under 42 U.S.C. § 1981a(b)(1) a complaining party may

recover punitive damages if the defendant discriminates

“with malice or with reckless indifference to the

federally protected rights of an aggrieved individual.”

We do not agree that the 1991 Civil Rights Act, 42 U.S.C.
-57-

§ 1981a(b)(1), limits the availability of punitive

damages to “exceptional circumstances of unusual bad

motive that transcends ordinary intentional misconduct.”

The Second Circuit rejected a similar argument in Luciano

v. Olsten Corp., 110 F.3d at 219-20. In that case the

employer argued punitive damages required

“extraordinarily egregious” conduct. The court held that

“[n]othing in the . . . text [of § 1981a(b)(1)] indicates

that a heightened standard was meant to
We need not decide whether recovery of punitive damages under Title VII

5

requires a “heightened” showing beyond intentional discrimination (that is, intentional

discrimination based on disparate treatment as opposed to disparate impact), although

the author would suggest that it does not. See 42 U.S.C. § 1981a(d)(2) (defining

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apply to Title VII cases.” Id. at 220, citing Rowlett v.

Anheuser-Busch, Inc., 832 F.2d 194, 205 (1st Cir. 1987)

(punitive damages under 42 U.S.C. § 1981 available where

defendant’s conduct is motivated by evil motive or

involves reckless indifference to federally protected

rights), Beauford v. Sisters of Mercy-Province of

Detroit, Inc., 816 F.2d 1104, 1108-09 (6th Cir.) (same),

cert. denied, 484 U.S. 913 (1987), and Smith v. Wade, 461

U.S. at 55-56 (punitive damages under 42 U.S.C. § 1983

available under common law when conduct motivated by evil

motive or intent or reckless or callous indifference to

federally protected rights of others); accord Kolstad v.

American Dental Ass’n, 108 F.3d at 1437-39. The court

also noted the legislative history indicated that

Congress intended to make punitive damages available

under § 1981a “to the same extent and under the same

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 correctly

rejected Nash Finch’s argument that a plaintiff must

demonstrate something more than that required by the

statute to recover punitive damages, that is, that the

defendant acted “with malice or with reckless

indifference to the federally protected rights of an

aggrieved individual.” 42 U.S.C. § 1981a(b)(1).5
“discriminatory practice” to mean disparate treatment and not disparate impact); cf.

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 205-06 (1st Cir. 1987) (rejecting in

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 (1997); Karcher v. Emerson

Elec. Co., 94 F.3d 502, 509 (8th Cir. 1996) (same), cert. denied, 117 S. Ct. 1692, 1693

(1997). 

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Nash Finch also argues that there was insufficient

evidence to support the punitive damages award. Nash

Finch argues there was no evidence of willfulness, malice

or reckless indifference to the federally protected

rights of others, much less “exceptional circumstances of

unusual bad motive that transcends ordinary intentional

misconduct.” Nash Finch argues that, at most, there was

only circumstantial evidence of discrimination consisting

of “inconsistent explanations for the allocation of

scarce employment opportunity.” We hold that there was

sufficient evidence to support the punitive damages

award. 

Based on the record as discussed above, a reasonable

jury could have found that Nash Finch acted with reckless

indifference to Kim’s federally protected rights. There

was evidence that Nash Finch knew what constituted

unlawful employment practices. There was also evidence

that Nash Finch systematically retaliated against Kim for

filing an employment discrimination charge and attempted

to discredit him by “papering” his personnel file. The

intentional discrimination at issue-- failure to promote
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and retaliation-- involved disparate treatment, not

disparate impact, and was undertaken by supervisors or

management. “The requisite level of recklessness or

outrageousness [required to support punitive damages] can

be inferred from management’s participation in the

discriminatory conduct.” Kimzey v. Wal-Mart Stores, Inc.,

107 F.3d at 575, citing Kientzy v. McDonnell Douglas

Corp., 990 F.2d 1051, 1062 (8th Cir. 1993). Direct

evidence 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

evidence of inconsistent explanations for Nash Finch’s

conduct, that is, that Nash Finch had lied;
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as discussed above (at some length), there was also

evidence that Nash Finch had intentionally discriminated

against Kim on the bases of race or national origin. 

EXCESSIVE VERDICT

Finally, Nash Finch argues the verdict was

unreasonable because it was grossly excessive and grossly

disproportionate to the kind of wrong and the actual

damages. Nash Finch argues that the jury awarded $36,000

for back pay even though the difference in actual wages

was less than $2,000, more than $1.5 million for emotional

distress even though Kim continued to work and lead a

normal life, and $7 million for punitive damages, an

amount which is 3,500 times the actual loss of $2,000 and

almost half of Nash Finch’s annual earnings. Brief for

Appellee/ Cross-appellant at 48; Reply Brief for Appellee/

Cross-appellant at 21 (citing Plaintiff’s Ex. 26 at 2). 

Because the district court applied the Title VII

statutory cap, the district court limited the jury’s award

of $150,000 in compensatory damages for emotional distress

for the 1992 failure-to-promote claim, the $1.5 million in

compensatory damages for emotional distress for the

retaliation claim, and the $7 million in punitive damages

to a total of $ 300,000, slip op. at 15-16, and did not

“engage in an analysis as to the excessiveness of the

award except to say that damages in the amount being

awarded are certainly not excessive due to the length of

time the discrimination continued, the level of

retaliation by Nash Finch and the financial well-being of

Nash Finch.” Id. at 14. Thus, as reduced by the district

court, the judgment awarded Kim damages in the amount of

$21,000 for lost wages, $100,000 for emotional distress
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for the 1990 failure-to-promote claim and $300,000,

including punitive damages, for the 1992

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 1992

failure-to-promote and retaliation claims. Because the

Title VII statutory cap does not
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apply to limit the recovery under 42 U.S.C. § 1981, the

district court should not have reduced the amount of

damages awarded pursuant to the Title VII statutory cap.

See 42 U.S.C. § 1981a(b)(4); Johnson v. Metropolitan Sewer

District, 926 F. Supp. at 876. Nonetheless, we think the

district court was correct to reduce the amount of damages

awarded by the jury because the amount was grossly

excessive. In effect, what the district court did

amounted to remittitur, which we review for clear abuse of

discretion. See, e.g., Kientzy v. McDonnell Douglas

Corp., 990 F.2d at 1062. It is not possible to ascertain

what portion of the $300,000 is attributable to

compensatory or punitive damages, so we will assume for

purposes of analysis that the entire amount was for

punitive damages. 

After carefully reviewing the evidence, we conclude

that, although an award of $1.75 million for emotional

distress is grossly excessive, an award of $100,000 is

not. See Kimzey v. Wal-Mart Stores, Inc., 107 F.3d at 570

($35,000); Turic v. Holland Hospitality, Inc., 85 F.3d at

1215-16 (listing cases in which damages for emotional

distress ranged from $40,000 to $150,000); Kientzy v.

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

v. Scott Specialty Gases, Inc., 930 F. Supp. at 199

($100,000). 

Similarly, we conclude that, although an award of $7

million for punitive damages is grossly excessive, an

award of $300,000 is not. Factors to consider in

determining the reasonableness of a punitive damages award

include the degree of reprehensibility of the defendant’s

conduct, the ratio or relationship between the actual harm

inflicted on the plaintiff and the punitive damages award,
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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 federal protected rights. It

did not involve violence or the threat of violence, but it

did involve trickery or deceit. The ratio or relationship

between the reduced punitive damages award and the actual

harm inflicted
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as measured by the reduced amount of back pay and

compensatory damages is a relatively unremarkable 3:1.

See BMW of North America, Inc. v. Gore, 116 S. Ct. at 1602

(noting 4:1 ratio of punitive damages to compensatory

damages was described as “close to the line” in Pacific

Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 23-24

(1991), and that relevant ratio 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., 107

F.3d at 577-78 (reducing punitive damages award from $5

million to $350,000, an amount 10 times the actual damages

award of $35,000, which the court described as “low”).

Finally, Title VII, which authorizes or imposes liability

for comparable misconduct, caps compensatory and punitive

damages at $300,000 (for the largest employers). 42

U.S.C. § 1981a(b)(3)(D); see, e.g., Rush v. Scott

Specialty Gases, Inc., 930 F. Supp. at 202 (reducing

punitive damages award from $3 million to $300,000). We

think a $300,000 punitive damages award is an adequate

sanction and sufficient to deter future similar conduct,

considering the size and assets of Nash Finch. 

CONCLUSION

In sum, we hold the district court should have granted

the motion to amend the pleadings to conform to the

evidence and thus should not have applied the Title VII

cap, 42 U.S.C. § 1981a(b)(3), to limit compensatory and

punitive damages. We also hold the district court did not

err in holding the November 1990 failure-to-promote claim

was actionable under 42 U.S.C. § 1981 under Patterson,

there was sufficient evidence of intentional

discrimination and retaliation, and there was sufficient

evidence of malice or reckless indifference to support
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punitive damages. Finally, we hold the awards of back pay

and compensatory and punitive damages, as reduced by the

district court, were supported by sufficient evidence and

were not excessive. 

Accordingly, we affirm the judgment of the district

court.
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BEAM, Circuit Judge, concurring in part and dissenting in

part.

I concur in the result reached by the court and in the

opinion of the court except that I do not agree that the

evidence was sufficient to submit the issue of punitive

damages to the jury. Thus, any award for punitive damages

was error. Since, as noted by the court, “[i]t is not

possible to ascertain what portion of the $300,000 [award]

is attributable to compensatory or punitive damages,”

infra 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 that

of the court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.