dissenting:
I respectfully dissent. I would remand for a new trial because improper jury instructions and the improper exclusion of highly relevant evidence combine to persuade me that the School District was not afforded a fair trial.
Exclusion of Complaint Testimony.
In denying the School District’s motion for a directed verdict, the district court noted that Lee had no direct evidence of age discrimination; therefore, since the School District had articulated non-discriminatory, performance-based reasons for non-renewal, Lee had the burden of proving that those reasons were a mere pretext for age discrimination.
The notice of non-renewal advised Lee that two of the reasons for the recommended discharge were Lee’s poor relationships with parents and teachers and his inappropriate handling of student problems and needs. At the trial, principal Storm and assistant principal Voight were the School District’s primary witnesses. Though the key issue in the ease was pretext — were their stated reasons for recom*334mending non-renewal genuine — the district court repeatedly excluded testimony by these administrators detailing complaints they had received from parents and teachers about Lee’s performance in the 1986-1987 school year.1
When this issue first came up during defense counsel's examination of Storm, the district court ruled that there could be no testimony as to specific parent or student complaints about Lee unless they had been reduced to writing because “there’s no possibility, no chance of cross-examination about that.” This ruling was repeated three times during the examination of Storm. Later, when defense counsel asked Voight whether parents and students had complained about the numerous incomplete grades Lee gave out in October 1986 — a key incident in the School District’s version of why Lee’s non-renewal was recommended — the district court again excluded this highly relevant pretext evidence, ruling that the complaints were inadmissible hearsay unless reduced to writing so that they qualified as business records.
It is a well-settled principle of employment discrimination litigation that documents and testimony reflecting complaints about a discharged employee are not hearsay, and are admissible, when offered to show the employer’s motive and basis for decision. See McDaniel, 770 F.2d at 1349 (transcript of school board hearing admissible to show non-renewal motive and intent); Crimm v. Missouri Pac. R.R., 750 F.2d 703, 709 (8th Cir.1984) (investigative notes and report); Jones v. Los Angeles Community College Dist., 702 F.2d 203, 205 (9th Cir.1983) (prior unsatisfactory service notices). Indeed, this principle is so well recognized that the court in McKenna v. Weinberger, 729 F.2d 783, 792 (D.C.Cir.1984), in holding admissible supervisor testimony about co-worker complaints, stated that plaintiff’s hearsay contention did not warrant extended consideration.
Our prior decisions demonstrate the importance of this erroneously excluded evidence. In Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 291 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983), we held that testimony of “repeated complaints from a variety of sources regarding [plaintiff's] performance” justified a directed verdict dismissing plaintiff’s ADEA case. And just last month, in an opinion authored by Judge Ross in which Judge John R. Gibson joined, we relied heavily upon parental job performance complaints in reversing a jury verdict in favor of a terminated school bus driver and directing that j.n.o.v. be entered in favor of the school superintendent. Cox v. Miller County R-I School Dist., 951 F.2d 927 (8th Cir.1991).
Two of our employment discrimination cases that raised a different but analogous issue confirm that the district court’s evi-dentiary rulings were reversible error. In Hawkins v. Hennepin Technical Center, 900 F.2d 153 (8th Cir.), cert. denied, — U.S. —, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990), we granted a new trial to the verdict-losing plaintiff because the district court had excluded evidence of prior complaints of discriminatory conduct by the employer. We explained:
Because an employer’s past discriminatory policy and practice may well illustrate that the employer’s asserted reasons for disparate treatment are a pretext for intentional discrimination, this evidence should normally be freely admitted at trial.
900 F.2d at 155-156; see also Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir.1988). Just as it is important in these pretext cases that the plaintiff be permit*335ted to show others’ complaints of discriminatory conduct by the employer, it is equally important to permit the employer to show third party complaints about the employee that support the employer’s prof-erred non-discriminatory reasons for its action.
The majority suggests that the district court’s exclusion of this important evidence was justified because the School District’s collective bargaining agreement prohibited reliance upon complaints not in writing. However, whether the School District complied with its own policies or contract obligations is irrelevant to the ADEA pretext inquiry. The ADEA is concerned with whether the employer in fact acted upon the parent and student complaints, not with whether it should have acted upon those complaints as a matter of state law.
The majority also argues that the district court admitted general testimony of parent and student complaints and thus its exclusion of more detailed testimony was proper to control the witnesses. However, the record does not support the majority’s assertion that the district court was merely controlling overly voluble witnesses; as its post-trial memorandum rejecting the School District’s offer of proof made clear, the district court’s rulings were based upon its mistaken view of the hearsay question.
Finally, I cannot accept the majority's suggestion that the School District’s offer of proof was inadequate to preserve this issue on appeal. “A party offering proof which is excluded at trial preserves the record on appeal by telling the court what the evidence will tend to prove.” Estes, 856 F.2d at 1104. In the face of the district court’s repeated adverse rulings, the School District’s offers of proof on this question clearly met that standard.
To summarize this issue, I conclude that the evidence of parent and student complaints excluded by the district court went to the heart of the School District’s defense, that this evidence was clearly admissible under controlling employment discrimination precedents of this court and other circuits, and that its erroneous exclusion denied the School District a fair opportunity to present its case. Thus, there was clear and prejudicial abuse of discretion that requires a remand for a new trial.
The State Law Issue.
The majority admits that the district court incorrectly stated the South Dakota law pertaining to teacher non-renewals in its instructions but concludes that this error of law was harmless. I disagree. It is impossible to know whether or not this error affected the jury’s decision, but it clearly affected the district court’s subsequent rulings upon which its judgment was based. In a post-trial Memorandum Opinion and Order on Motion for Equitable Relief, the district court stated that the jury’s finding of willfulness was proper because the non-renewal “was conducted under a facially flawed state statute” that violated Lee’s due process rights. This is graphic evidence that the district court’s erroneous view of South Dakota law led it far beyond the proper confines of an ADEA case and significantly affected its adverse judgment against the School District.
Liquidated Damages.
I also dissent from the majority’s decision as to liquidated damages because I do not believe this issue should have gone to the jury. In Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-130, 105 S.Ct. 613, 623-626, 83 L.Ed.2d 523 (1985), the Supreme Court noted that ADEA liquidated damages are punitive in nature and held that such damages may be awarded only if the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” In this case, I do not find even a scintilla of evidence that the School District committed such a “willful” violation.
In denying the School District’s post trial motion on this issue, the district court stated that the jury’s finding of willfulness was supported by plaintiff’s constructive discharge evidence. However, this evidence concerned events after the notice of non-renewal that had nothing to do with whether that notice was given in reckless disregard of the ADEA. Implicitly acknowledging the irrelevance of this evidence, the majority relies upon testimony *336by the school board president that he did not place a premium on experience in hiring new teachers. This witness — who did not make the decision to send Lee a notice of non-renewal — admitted that his view as to new hires should not be applied to decisions whether to retain teachers already hired. If anything, this testimony supports the School District’s claim that Lee’s non-renewal did not reflect age discrimination; thus, the majority’s assertion that it is somehow evidence of willful misconduct under the Thurston standard is beyond my comprehension.
Conclusion.
For the above reasons, I conclude that the School District is entitled to a new trial because of prejudicial errors of law that tainted the district court’s judgment. Even without those errors, however, I would remand for a new trial on the ground that the evidence of intentional age discrimination was legally insufficient. Frequently, when the evidence for the verdict winner was legally insufficient, we have reversed the denial of j.n.o.v. and ordered the entry of judgment for the verdict loser, as in Cox v. Miller County R-I School Dist., supra, and in Frieze v. Boatmen’s Bank of Belton, 950 F.2d 538 (8th Cir.1991). However, I conclude that here the trial was so misfo-cused by the bogus constructive discharge issue that a new trial is the more prudent and fair appellate disposition.2
For the foregoing reasons, I would reverse the judgment of the district court and remand this case for a new trial.
. The majority recites at great length Lee’s satisfactory performance as a teacher prior to the 1986-1987 school year. In my view, this is at most marginally relevant. The School District renewed teachers' contracts each year, and nothing in the ADEA prohibits the School District from basing its renewal decisions on a teacher’s most recent performance. Moreover, the record reflects that Lee’s difficulties did not begin until October 1986, when School District staff discovered that he had given over 30% of his students in one class incompletes for the first nine-week grading period. The monitoring of Lee's classrooms began as an investigation of that unacceptable grading episode.
. I reject the majority’s suggestion that the Seventh Amendment precludes a court of appeals from reversing a district court’s denial of a motion for new trial as contrary to the Supreme Court’s long-established interpretation of Rule 50 of the Federal Rules of Civil Procedure. See Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967); Johnson v. New York, New Haven & Hartfod R.R., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952). Of course, an appellate court should be reluctant to substitute its view as to the weight of the evidence for that of the district court, but the Constitution does not bar such action in an appropriate case.