Robert Kehoe v. Anheuser-Busch, Inc.

No. 95-3729
No. 96-1337

Robert Kehoe, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Anheuser-Busch, Inc., *
*
Defendant - Appellant.*

Submitted: June 12, 1996

Filed: September 25, 1996

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge,
and KORNMANN,1 District Judge.

FLOYD R. GIBSON, Circuit Judge.

Following a five-day trial, a jury found that Anheuser-Busch, Inc.
("Anheuser") violated the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. §§ 621-634 (1994), and the Missouri Human Rights Act ("MHRA"),
Mo. Ann. Stat. §§ 213.010-.137 (Vernon 1983 & Supp. 1996), when it failed
to transfer Robert Kehoe to an open position within the company. Anheuser
now appeals the district court's2 denial of its motion for judgment as a
matter of law or, in the alternative, for a new trial. In addition,
Anheuser challenges the amount of interim front pay awarded by the district

1
The HONORABLE CHARLES B. KORNMANN, United States District
Judge for the District of South Dakota, sitting by designation.
2
The HONORABLE JEAN C. HAMILTON, Chief United States
District Judge for the Eastern District of Missouri.
court to Kehoe. We affirm.

I. BACKGROUND

In 1983, Anheuser hired Kehoe, who at the time was fifty-five years
old, as a sports promotion coordinator within the company's Sports
Marketing Group ("SMG").3 The SMG is a division of Anheuser that evaluates
which segments of the public are interested in certain sports, determines
whether the relevant portion of the public includes likely consumers of
Anheuser beer, and uses interest in potentially favorable sports as a
marketing tool. Simply put, sports marketing involves selling a product
by widely publicizing its brand name before likely consumers.

Sports promotion coordinators are responsible for devising

3
In the course of this litigation, the parties have expended
a considerable amount of time quarreling about Kehoe's exact job
title. It appears that Anheuser's own internal memoranda have,
in large measure, fomented this dispute. Although Anheuser
originally employed Kehoe as an assistant sports promotion
manager, throughout his tenure with the corporation some company
documents referred to him as a sports promotion analyst, and
still others identified him as a sports promotion administrator.
Moreover, Kehoe's business card contained the description "sports
promotion assistant," and evidence introduced at trial suggests
that other sports promotion coordinators considered Kehoe to be a
member of their rank. According to Kehoe, his supervisors never
informed him of any change in his job title.

This confusion might be reflective of the fact that the SMG
is a relatively new organization within Anheuser that has found
it expedient to experiment with sundry organizational structures
during its first years of existence. Indeed, other SMG employees
who testified at trial had difficulty accurately identifying the
exact positions they had previously occupied within the group.
Under these circumstances, in particular, we believe that a
person's job title pales in importance to the actual duties
performed by the individual on a day to day basis. Thus, for
ease of discussion, we characterize Kehoe as a sports promotion
coordinator. To the extent that Kehoe's responsibilities
differed in relevant degree from those of his peers, we take the
dissimilarities into account when resolving the merits of this
appeal.

2
promotions to be implemented in conjunction with particular sports. Each
coordinator is charged with developing and administering campaigns for the
different sports, known as "sports properties," assigned to him. In most
cases, the coordinator also attends any promotional affairs and applies the
Sports Promotion Evaluation Module ("SPEM") to assess the relative cost and
benefit of the event to Anheuser.4 The sports properties allocated to an
individual coordinator can, for a variety of reasons, vary from time to
time.

Unlike other sports promotion coordinators, who typically oversee
several different sports properties at any given time, Kehoe's primary work
responsibilities while in the SMG pertained to the management and operation
of the Busch Soccer Club ("BSC"). The club provided Anheuser an
opportunity to show community good will in the St. Louis, Missouri area by
sponsoring a number of youth soccer teams under the BSC name. Anheuser's
initial involvement with the BSC was spearheaded by Denny Long, the
president of Anheuser and an avid soccer enthusiast. In fact, trial
testimony indicates that Long's passion for soccer and his desire to boost
the sport's popularity influenced the SMG's decision to develop a sports
promotion coordinator position exclusively for the BSC.5 To

4
In utilizing the SPEM, the coordinator first determines the
number of people exposed to a promotion, both through actual
attendance and via media publicity. By comparing this figure to
the resources allotted to the event, the coordinator ascertains
the cost to Anheuser for every one thousand "impressions." If a
certain sport consistently yields a relatively high cost per
thousand impressions, the SMG might discontinue funding for that
sports property.
5
In 1984, Joseph Castellano, who was at that time director
of the SMG, assigned another sports property, fishing, to Kehoe
in an effort to help him obtain the expertise necessary to
perform other types of sports promotions. After three months,
Kehoe decided, based upon the emphasis placed on the BSC by the
upper echelon of Anheuser's management, that he would not be able
to devote sufficient time to fishing promotions. Kehoe thus
successfully requested to be relieved of fishing duties, and he
never again
received a promotional assignment unrelated to the BSC.

3
be sure, the fact that the SMG, rather than another division of Anheuser,
assumed control over BSC activities evidences a motivation for the
brewery's association with the club detached from altruistic notions or a
desire to pacify the company's chief executive: It furnished Anheuser an
opportunity to market beer.

Until 1986, Anheuser directly paid the expenses of the teams
sponsored by the BSC. In that year, though, Anheuser organized the BSC as
an independent nonprofit corporation; from that point on, Anheuser entered
into an annual sponsorship agreement with the club, and the fee due under
that agreement was paid to the BSC from the SMG sports promotional budget.
After its incorporation, the BSC's board of directors included both
employees and nonemployees of Anheuser.

Although Kehoe was, of course, employed by Anheuser, the SMG
considered him to be a "loaned executive" to the BSC. Thus, in addition
to his formal position with the brewery, he also held miscellaneous titles
in his capacity as a BSC official. From 1983 to 1986, Kehoe served as
president of the BSC, and his duties entailed the supervision and
administration of all club activity. In June of 1986, the SMG hired Bob
Brunette, who is several months older than Kehoe, as BSC's executive
director. Brunette at that time became Kehoe's supervisor, and Kehoe's
title was changed to director of coaching. There was some overlap between
the two positions occupied by Kehoe and Brunette, and it seems fair to say
that Brunette rarely made any major decisions without consulting Kehoe.
Nonetheless, Brunette was ultimately responsible for the daily
administration of the BSC, which included the obligation to develop,
supervise, control, and monitor the club's budget. Kehoe's main duties
were selecting all BSC coaches, supervising and evaluating the coaches,
assisting BSC coaches with recruiting and practices, attending practices
and games, and arranging travel for

4
the teams. In addition, the SMG required Kehoe, like other sports
promotion coordinators, to regularly report to an SMG manager. Kehoe's
superiors readily acknowledge that he successfully performed BSC tasks, and
it is largely uncontroverted that he had a good work ethic, worked long
hours, and was well-liked by his colleagues.

In May of 1989, Mark Lamping became director of the SMG. Shortly
after he acceded to this office, Anheuser executives instructed Lamping to
reduce the SMG promotional budget. At that time, Bruce Hudson, who had
supervised Kehoe for a brief period during 1986, was the SMG manager to
whom Kehoe reported and who oversaw the direction of the BSC. By late
summer of 1989, Hudson and Lamping had agreed to conserve resources by
discontinuing funding to the BSC and eliminating Kehoe's position with
Anheuser.6 On December 6, 1989, the brewery informed Kehoe that his
employment was to be terminated, and his last day of work with the company
was March 31, 1990. Kehoe, who was the only SMG employee fired as a result
of the budget cuts, was then sixty-one years old and was earning $43,344.00
per year.

In approximately late July of 1989, contemporaneous with Lamping's
preparation of the SMG's 1990 budget, Steve Sampson, another sports
promotion coordinator, announced his resignation. Hudson suggested that
the vacancy be filled by Mary Katherine Casso, a twenty-three year old
psychology graduate who had worked as a summer intern with the SMG.
Lamping concurred in Hudson's recommendation and extended an offer to Casso
on September 26, 1989; she accepted and began working for Anheuser in
October.

6
The directive from Anheuser's senior management only
required Lamping to reduce the SMG's promotional budget, and
Kehoe's salary was not considered a promotional expense. Still,
Hudson and Lamping claim that they eliminated Kehoe's position as
part of their continuing obligation to refrain from "spend[ing]
company resources in an irresponsible manner."

5
Kehoe had not yet been notified that he was to be fired and did not apply
for the open position; neither Hudson nor Lamping considered him for the
post.

In early 1990, Kehoe applied for the newly created job of director
of administration for the BSC. Hudson, a member of the BSC's board of
directors, encouraged Brunette, the BSC's retired executive director, to
consider the part-time spot. Brunette refused, however, and the board
ultimately decided to hire Bob Albus at a salary of $12,000 per year.
Three of the six board members who voted on the issue were not employees
of Anheuser.

Kehoe subsequently filed suit against Anheuser in the United States
District Court for the Eastern District of Missouri, alleging that the
company had violated the ADEA and the MHRA by discriminating against him
on the basis of his age. The district court initially granted summary
judgment in Anheuser's favor, but this Court reversed in Kehoe v. Anheuser-
Busch, Inc., 995 F.2d 117 (8th Cir. 1993). In that proceeding, we viewed
the appeal as a reduction in force case and determined that Kehoe had met
his prima facie burden of showing discriminatory discharge due to age. We
also decided that Kehoe's evidence was sufficient to create a jury question
as to whether Anheuser's stated legitimate, nondiscriminatory reasons for
his discharge were pretextual.

On remand, the case proceeded to trial and the court submitted the
following two issues to the jury: 1) whether Anheuser unlawfully
discriminated against Kehoe when it eliminated his position; and 2) whether
the company committed unlawful age discrimination by failing to transfer
Kehoe to an open sports promotion coordinator position. The jury found for
Anheuser on the first question, but returned a verdict for Kehoe on the
failure to transfer claim. Nonetheless, though it was undisputed that
Kehoe would have earned the equivalent of $251,590.53 in salary and
benefits had he retained a position with Anheuser, the jury awarded

6
only $60,000 in damages. The court denied Anheuser's motion for judgment
as a matter of law or, alternatively, for a new trial and instead entered
judgment in accordance with the verdict. After a post-trial hearing, the
court additionally ordered Anheuser to reinstate Kehoe to the first open
position as a sports promotion manager. Because no such jobs in the St.
Louis area were then available, the court in the interim awarded front pay
to Kehoe. The court stressed that Kehoe has a continuing duty to mitigate
and specified that the front pay is to be reduced by the amount that he
actually earns during the relevant period.

Anheuser presently appeals the district court's judgment. The
company insists that the trial judge committed error in denying its motion
for judgment as a matter of law, in instructing the jury, and in fashioning
the front pay award.7 We consider each of these allegations seriatim.

II. DISCUSSION

A. Anheuser's Motion for Judgment as a Matter of Law

Our quite limited task when reviewing a district court's denial of
a motion for judgment as a matter of law is to adjudge whether there is
sufficient evidence to support the jury's verdict. Nelson v. Boatmen's
Bancshares, Inc., 26 F.3d 796, 800 (8th Cir. 1994). To make this
assessment, we must: (1) consider the evidence in the light most favorable
to Kehoe; (2) assume that all conflicts in the evidence were resolved in
favor of Kehoe; (3) assume as proved all facts that Kehoe's evidence tended
to prove; and (4) give Kehoe the benefit of all favorable inferences that
may reasonably be drawn from the facts. Id. "Judgment as a matter of

7
In Number 96-1337, Anheuser also appeals the district
court's award of attorneys' fees to Kehoe. The parties, however,
have stipulated that our ruling on the underlying judgment will
be dispositive of that appeal.

7
law is appropriate only when all of the evidence points in one direction
and is susceptible to no reasonable inference that would sustain the
position of the nonmoving party." Tidwell v. Meyer's Bakeries, Inc., No.
95-3506, 1996 WL 471348, at *4 (8th Cir. Aug. 21, 1996). "We must affirm
a denial of a motion for judgment as a matter of law if reasonable persons
could differ as to the conclusions to be drawn from the evidence." Parrish
v. Immanuel Medical Ctr., No. 95-3514, 1996 WL 455555, at *3 (8th Cir. Aug.
14, 1996).

1. Unlawful Discrimination

Anheuser first argues that it is entitled to judgment as a matter of
law because Kehoe failed in various respects to meet the minimum
evidentiary burdens required of him at trial. In support of this claim,
however, Anheuser improperly focuses upon the alleged weakness of Kehoe's
proof at various stages of the familiar McDonnell Douglas framework
applicable in this disparate treatment case.8 See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 800-04 (1973) (setting forth the "order and
allocation of proof" in a disparate treatment case under Title VII); Krenik
v. County of Le Seuer, 47 F.3d 953, 957 (8th Cir. 1995) (observing that the
McDonnell Douglas framework applies to cases under the ADEA). Anheuser's
reasoning, though, ignores the well-settled law of this circuit, as stated
in Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir. 1990). In that
case, we emphasized that, on an appeal following a full trial in an
employment discrimination case, "[t]his court will not assess the adequacy
of a party's showing at any particular stage of the McDonnell Douglas
analysis." Id. Rather, "[o]nce a finding of discrimination has been made
and that judgment is being considered on appeal, the McDonnell Douglas

8
Courts employ the same analysis under both the ADEA and the
MHRA. See Gillming v. Simmons Indus., No. 95-3466, 1996 WL
438693, at *6 n.2 (8th Cir. Aug. 6, 1996); McMullin v. McRaven,
882 S.W.2d 772, 774 (Mo. Ct. App. 1994).

8
presumptions fade away, and the appellate court should simply study the
record with a view to determining whether the evidence is sufficient to
support whatever finding was made at trial." Id. (quotation omitted).
Once again, then, we find it necessary to remind the litigants that our
present obligation is merely to concentrate our efforts "upon the ultimate
factual issue of whether the employer intentionally discriminated against
the employee." Id.; see also United States Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 715 (1983) ("Where the defendant has done
everything that would be required of him if the plaintiff had properly made
out a prima facie case, whether the plaintiff really did so is no longer
relevant."); Parrish, 1996 WL 455555, at *8 n.2 ("[W]e decline to deviate
from our task on appeal of determining whether the evidence is sufficient
to support the jury's finding of unlawful discrimination.").

This is not to say that we will never find it necessary, in an appeal
from a district court's denial of a motion for judgment as a matter of law,
to consider the potency of the plaintiff's prima facie case. See, e.g.,
Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1110 (8th Cir.)
(refusing to upset jury's verdict where plaintiff had established prima
facie case and had presented sufficient evidence of pretext), cert. denied,
115 S. Ct. 355 (1994). In Gaworski, we undertook an analysis of the
Supreme Court's opinion in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993). Gaworski, 17 F.3d at 1108-09. The Court in Hicks explained that,
while rejection of the employer's proffered nondiscriminatory reasons does
not compel a verdict for the plaintiff, "[t]he 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."
Hicks, 509 U.S. at 511. Applying this axiom in Gaworski, we held:

[I]f (1) the elements of a prima facie case are present,

9
 and (2) there exists sufficient evidence for a reasonable jury
to reject the defendant's proffered reasons for its actions,
then the evidence is sufficient to allow the jury to determine
whether intentional discrimination has occurred, and we are
without power to reverse a jury's finding.

Gaworski, 17 F.3d at 1109.

Despite the somewhat expansive tenor of this pronouncement, decisions
subsequent to Gaworski have been careful to emphasize that the Supreme
Court in Hicks mentioned, even where the employee has refuted the
employer's proffered reasons for the adverse employment action, the
plaintiff cannot prevail unless he has introduced "evidence that will
'suffice to show intentional discrimination.'" Rothmeier v. Investment
Advisers, Inc., 85 F.3d 1328, 1335 (8th Cir. 1996) (quoting Hicks, 509 U.S.
at 511). As such, we have concluded that the relevant holding in Gaworski,
as set out above, applies only in the presumably rare scenario in which the
plaintiff's evidence of pretext serves "double duty." See Boatmen's
Bancshares, 26 F.3d at 801. That is, where the proof of pretext "serve[s]
the additional purpose of permitting an inference that [unlawful]
discrimination was a motivating factor in a plaintiff's termination." Id.
In all other cases, the plaintiff "must do more than simply discredit an
employer's nondiscriminatory explanation; he must also present evidence
capable of proving that the real reason for [the adverse employment action]
was discrimination based on [a prohibited criterion]." Id.

For our immediate purposes, then, we have returned full circle to the
standard of review embraced by Morgan. When a party challenges the
district court's denial of a motion for judgment as a matter of law, we
will examine the elements of the prima facie case only in the infrequent
circumstance where the plaintiff has shown no independent proof of
intentional discrimination and has instead singularly relied upon his
evidence of pretext to serve "double duty." In the vast majority of
appeals, such as the one

10
now before us, we need not be distracted by the stages of the McDonnell
Douglas framework, and we will continue to focus solely on the "central
question" of "whether there was sufficient evidence to decide whether the
defendant[] intentionally discriminated against the plaintiff[]." Winbush
v. Iowa, 66 F.3d 1471, 1480 (8th Cir. 1995) (Opinion by Judge Lay).

Turning, at last, to the merits of this issue, and viewing the facts
in a light most favorable to Kehoe, we decide that he presented sufficient
evidence to support the jury's finding of unlawful discrimination. First
of all, there was ample evidence to allow the factfinder to infer that
Anheuser's proffered nondiscriminatory reasons were a pretext for age
discrimination. The company asserted that it did not transfer Kehoe to the
open sports promotion coordinator position because he was not qualified to
perform that job. In particular, Bruce Hudson and Mark Lamping, Kehoe's
superiors, maintained that Kehoe, who has a college degree in physical
education, did not possess the analytical or interpersonal skills required
by the position. Furthermore, the supervisors alleged that they held
severe misgivings about Kehoe's ability to effectively manage a sports
promotional budget.

Kehoe countered these contentions with testimony by two former SMG
employees, one of whom had supervised Kehoe for a period, indicating that
Kehoe was well-liked by his peers and satisfactorily performed a job at the
BSC that was not dissimilar to the open sports promotion coordinator
position. These witnesses further declared that Kehoe had the competence
to conduct the analytical component of the vocation, which included
application of the SPEM formula. Kehoe also pointed to the fact that he
had, without complaint, assisted in the efficient administration of the
BSC's rather large budget, and through frugal spending over the years had
even managed to accumulate a $100,000 surplus. In fact, Hudson himself
admitted that, with training, Kehoe could capably perform most, if not all,
of the functions demanded of a typical

11
sports promotion coordinator.9 Moreover, though Anheuser implies that
Kehoe did not have the educational background or experience to succeed in
a marketing career, the person ultimately hired by the SMG had received a
degree in psychology and only enjoyed the experience that a summer
internship with Anheuser had provided.

In addition to these facts discrediting Anheuser's proffered reasons
for the failure to transfer, Kehoe also introduced other evidence "that
would allow a jury reasonably to infer that the real reason for the adverse
employment action was intentional discrimination." Rothmeier, 85 F.3d at
1336. Significantly, Kehoe demonstrated that he was the only person within
the SMG to lose his job as a result of the cuts in the promotional budget,
and he showed that younger sports promotion coordinators had retained their
positions even after the SMG had discontinued funding for certain of their
sports properties. Most telling, though, was the testimony regarding
assorted statements attributed to Hudson. Credible evidence indicated that
Hudson, when discussing the attendance of Kehoe and Brunette at yearly
marketing meetings, commented, "What are these guys going to do? Sit in
back, fall asleep?" Hudson also reportedly referred to the two older men
as "moochers" and "leeches," stated that they were not part of the "group,"
and intimated that the budget cuts gave him an opportunity to "get rid of"
Kehoe. One witness testified that Hudson desired to relocate Kehoe's
office away from Anheuser's corporate premises in order to "get him out of
the way." Additionally, evidence suggested that Hudson called Kehoe an
"old fart" and described the BSC as a "retirement center" where he had been
"put out to pasture." Finally, with regard to the distribution of
promotional

9
After Hudson made this concession, Anheuser was reduced to
arguing that, although Kehoe might have been able to perform the
"discrete parts" of a sports promotion coordinator position, he
was incapable of competently synthesizing all of his skills to
engage in the "big picture" of "overall marketing."

12
assignments, Hudson was said to have lamented, "What am I going to give
[Kehoe]? Senior golf?"

Anheuser propounds that these statements were mere "stray remarks"
unrelated to the transfer decision at issue, but we cannot agree. Hudson
was Kehoe's immediate supervisor, and he was also the person who made the
recommendation to Lamping about who should fill the vacant position.
Significantly, the person whom Hudson initially endorsed for the job, Mary
Catherine Casso, ended up receiving the post. Though Lamping, who was one
step above Hudson in the SMG's management hierarchy, stated that he
regarded Kehoe as unqualified for the position, he admitted that he
actually had very little contact with Kehoe and relied on Hudson's
estimation of the employee's abilities. Thus, far from being "stray
remarks," we conclude that Hudson's comments exemplify "statements by
persons involved in the decisionmaking process that may be viewed as
directly reflecting the alleged discriminatory attitude of an extent
sufficient to permit the jury to infer that that attitude was more likely
than not a motivating factor in the employer's decision." Nelson v. J.C.
Penney Co., 75 F.3d 343, 345 (8th Cir. 1996) (quotations and alteration
omitted), petition for cert. filed, 64 U.S.L.W. 3795 (U.S. May 20, 1996)
(No. 95-1878).

Because Kehoe produced sufficient evidence to support the jury's
finding of age discrimination, the district court correctly refused to
grant Anheuser's motion for judgment as a matter of law.

2. Irrational Verdict

The parties agreed that, had Anheuser transferred Kehoe to the open
position, between the time of his discharge and the date of his trial he
would have earned $251,590.53 in salary and benefits. The jury, however,
only awarded Kehoe $60,000 in back pay. Anheuser now claims that this
disparity reveals the jury compensated Kehoe for his failure to procure
employment as the

13
BSC's director of administration, an occupation that would have paid
roughly $60,000 during the same interval. Therefore, as the BSC is a
separate corporate entity for whose acts the brewery cannot legally be held
accountable, Anheuser alleges that it is entitled to judgment as a matter
of law.

This argument need not occupy us for long. We recently reiterated:

Given correct instruction on the law and no clear disregard for
that instruction on the face of the verdict, a jury verdict
must remain immune from questioning by the district court and
from speculation by an appellate court that the verdict may be
based on a misunderstanding of the law.

T.H.S. Northstar Assocs. v. W.R. Grace & Co., 66 F.3d 173, 178 (8th Cir.
1995) (quotation and alteration omitted). Stated another way, "mere
speculation that a jury verdict may have been based on the jury's own
misunderstanding of the law, even though properly instructed, is an
insufficient basis on which to upset a jury verdict." Gander v. FMC Corp.,
892 F.2d 1373, 1379 (8th Cir. 1990), cert. denied, 498 U.S. 878 (1990).
In the case now before us, the district court correctly advised the jury
that Anheuser would be liable on the pertinent cause of action only if the
company, for a statutorily prohibited reason, "did not transfer Plaintiff
to one or more open positions in the Sports Marketing Group." Nowhere do
the instructions even remotely insinuate that Anheuser could be held
accountable for the BSC's rejection of Kehoe's application. The properly
instructed jury returned an internally consistent verdict; thus, Anheuser
is not entitled to judgment as a matter of law.10 See W.R. Grace, 66 F.3d
at 178.

10
To the extent that Anheuser intends to argue that the
grounds asserted in support of its motion for judgment as a
matter of law would provide a basis for granting a new trial, we
decide that the district court did not abuse its discretion when
it rejected these allegations and declined to order a new trial.
See Boatmen's Bancshares, 26 F.3d at 800 (recounting that we
review the
denial of a motion for a new trial under the abuse of discretion
standard).

14
 B. The Jury Instructions

Anheuser complains that the district court failed to instruct the
jury that Kehoe could not prevail on the failure to transfer claim unless
he proved he applied for the open sports promotion coordinator position.
Also, the company avers that the instructions did not appropriately
describe the type of causation required under the ADEA. Anheuser submitted
objections on both of these points at the district court's charge
conference, but it failed to tender alternate instructions containing what
it considered to be a correct articulation of the law.

In order to properly preserve a claim of instructional error for
appellate review, a party is not only required to make a sufficiently
precise objection before the district court, see Jones Truck Lines, Inc.
v. Full Serv. Leasing Corp., 83 F.3d 253, 256 (8th Cir. 1996), but it must
also propose an alternate instruction, see Grogan V. Garner, 806 F.2d 829,
837 n.10 (8th Cir. 1986). Otherwise, the claim is waived, and we will
reverse only if the district court's instructions constitute plain error.
See Jones Truck Lines, 83 F.3d at 256-257. Consequently, because Anheuser
did not offer alternate instructions to the district court, reversal will
be appropriate here only if the asserted error "seriously affected the
fairness, integrity, or public reputation of the judicial proceedings."
Id. at 257 (quotation omitted).

1. The application requirement

Anheuser insists that the district court committed reversible error
when it neglected to instruct the jury on an important

15
element of Kehoe's prima facie case.11 Namely, the company contends that
the court should have instructed the jury that the employee was obliged to
apply for the open position. While Anheuser is correct that the
application requirement is normally considered a component of the
plaintiff's prima facie case, we cannot conclude that the district court
committed plain error.

As we have already discussed, this Court has expressly held that an
employee's strong prima facie showing, acting in concert with evidence of
pretext sufficient to raise an inference of discrimination, is an adequate
foundation for a plaintiff's verdict. See Rothmeier, 85 F.3d at 1336-37.
Accordingly, the district courts in this circuit are constrained to
instruct juries on the elements of the prima facie case.12 Nonetheless,
while district judges should, as always, strive to accurately advise the
jurors of the law, an otherwise unremarkable error in the

11
To establish a prima facie case on a failure to transfer
claim under the ADEA, the plaintiff must ordinarily show: 1) he
is a member of a protected class; 2) he applied for and was
denied a position for which he was qualified; and 3) the position
was given to a significantly younger person. See O'Connor v.
Consolidated Coin Caterers Corp., 116 S. Ct. 1307, 1310 (1996)
(holding that, for purposes of the ADEA, a plaintiff establishes
a prima facie case by showing, inter alia, that his replacement
is significantly younger); Lidge-Myrtil v. Deere & Co., 49 F.3d
1308, 1310 (8th Cir. 1995) (listing prima facie elements in
similar failure to promote context).
12
We note in passing that other courts of appeals have
indicated that district courts should refrain from instructing on
the elements of the prima facie case. See, e.g., Woodhouse v.
Magnolia Hosp., No. 95-60697, 1996 WL 444257, at *7 (5th Cir.
Aug. 6, 1996) ("[I]t is improper to instruct the jury on the
elements of the prima facie case."); Gehring v. Case Corp., 43
F.3d 340, 343 (7th Cir. 1994) ("Once the judge [in pretrial
proceedings] finds that the plaintiff has made the minimum
necessary demonstration (the 'prima facie case') and that the
defendant has produced an age-neutral explanation, the burden-
shifting apparatus has served its purpose, and the only remaining
question--the only question the jury need answer--is whether the
plaintiff is a victim of intentional discrimination."), cert.
denied, 115 S. Ct. 2612 (1995).

16
instruction describing the prima facie case will diminish in significance
where the plaintiff has presented ample evidence to support the ultimate
finding of unlawful discrimination.

Here, Kehoe's evidence was sufficient to support the jury's
conclusion that Anheuser intentionally discriminated against him because
of his age. Thus, even assuming, without deciding, that the district
court's instruction was faulty,13 any error could not be considered plain.
It was within the jury's purview to find in Kehoe's favor on the ultimate
question of unlawful discrimination; it follows, then, that any flaw in the
instruction addressing the prima facie case could not have "seriously
affected the fairness, integrity, or public reputation of the judicial

13
The Supreme Court has observed that "[t]he burden of
establishing a prima facie case of disparate treatment is not
onerous," Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981), and the Court has emphasized that "the prima
facie proof required from [the plaintiff] is not necessarily
applicable in every respect to differing factual situations,"
McDonnell Douglas, 411 U.S. at 802 n.13. Hence, although it is
usually necessary for a plaintiff to show that he applied for an
available position, that element of the prima facie case will be
excused where he demonstrates that the employer "'had some reason
or duty to consider him for the post.'" Fowle v. C & C Cola, 868
F.2d 59, 68 (3d Cir. 1989) (quoting Carmichael v. Birmingham Saw
Works, 738 F.2d 1126, 1133 (11th Cir. 1984)); see also Chambers
v. Wynne Sch. Dist., 909 F.2d 1214, 1217 (8th Cir. 1990)
(discussing other situations in which formal application will be
excused).

In the case sub judice, Kehoe presented evidence tending to
show that his supervisors knew they were going to eliminate his
position at the same time that they were surveying candidates for
the available job as a sports promotion coordinator. Kehoe,
though, did not learn that he was going to be fired until after
the post had already been filled. Under these circumstances, we
would be inclined to hold, as a matter of law, that the
application requirement should be excused because Anheuser had a
reason or duty to consider Kehoe for the job. See Shannon v.
Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996) ("It would be
ironic--bizarre, in fact--if a victim of discrimination were
unable to vindicate her rights because she had the peculiar
misfortune of being discriminated against in a way that
necessarily prevented her from making her prima facie case.").

17
proceedings."

18
Jones Truck Lines, 83 F.3d at 257 (quotation omitted).

2. Causation

Anheuser next urges us to remand for a new trial because the district
court's charge on causation was erroneous. Our independent review of the
instructions, however, discloses no error. Instruction seventeen informed
the jury that "an employer may lawfully choose not to hire or reassign an
employee to a specific position so long as age is not a reason for the
decision." Another instruction added that Anheuser was at liberty to fire
Kehoe "at any time for any reason whatsoever except that Plaintiff's
employment could not be terminated because of his age." We believe that
these statements and others satisfactorily conveyed to the jury that
Anheuser could be liable under the ADEA for disparate treatment only if
Kehoe's age "actually played a role in [Anheuser's decisionmaking] process
and had a determinative influence on the outcome." Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610 (1993); see also Miller v. Cigna Corp., 47 F.3d
586, 592-98 (3d Cir. 1995) (en banc)(discussing the impact of recent
Supreme Court opinions on the causation requirement in disparate treatment
cases). The district court did not commit any error, much less plain
error, when instructing the jury on causation.

C. Front Pay

Finally, Anheuser argues that Kehoe has failed to mitigate his
damages. The company thus maintains that the district court should have
reduced the interim front pay award by the amount Kehoe could earn, instead
of by the amount he actually earns, during the relevant period. It is
axiomatic that "[t]he ADEA requires that plaintiffs use reasonable efforts
to obtain other employment after termination." Rhodes v. Guiberson Oil
Tools, 82 F.3d 615, 621 (5th Cir. 1996). The burden is upon the defendant
employer, though, to show that the plaintiff has not fulfilled this
mitigation

19
requirement. Smith v. World Ins. Co., 38 F.3d 1456, 1465 (8th Cir. 1994).
We will "review a finding that a plaintiff used reasonable efforts to
obtain other employment as a determination of fact, reversible only if
clearly erroneous." Rhodes, 82 F.3d at 621.

We have read the rather long transcript in this case, and we cannot
classify as clearly erroneous the district court's decision that Kehoe has
taken adequate measures to mitigate his damages. Therefore, we will not
disturb the interim front pay award.

III. CONCLUSION

There was sufficient evidence to support the jury's verdict, and the
district court properly refused to grant Anheuser's motion for judgment as
a matter of law. Because the company has failed to persuade us that any
other grounds warrant reversal, we affirm.14

AFFIRMED.

A true copy.

Attest:

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

14
We also affirm the district court's award of attorneys'
fees in Number 96-1337.

20