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76 Fair Empl.prac.cas. (bna) 819,73 Empl. Prac. Dec. P 45,345vicki Cross, Plaintiff-appellee, v. Emanuel Cleaver Ii, et al., Defendants-appellants
United States Court of Appeals, Eighth Circuit. - 142 F.3d 1059
Submitted March 10, 1998.Decided April 10, 1998
Dale H. Close, Kansas City, MO, argued (Lisa S. Morris, Kansas City, MO, on the brief), for Defendants-Appellants.
James Mitchell Crabtree, Lenexa, KS, for Plaintiff-Appellee.
Before McMILLIAN and FAGG, Circuit Judges, and BENNETT,* District Judge.
BENNETT, District Judge.
TABLE OF CONTENTS
I. BACKGROUND ......................................................... 1063
A. Factual Background ........................................... 1063
B. Procedural Background ........................................ 1064
II. ANALYSIS ........................................................... 1065
A. Applicable Standards ......................................... 1065
1. Judgment as a matter of law .............................. 1065
2. Improper jury instructions ............................... 1067
B. Preservation Of Errors ....................................... 1069
1. The objection to the liability standard .................. 1069
2. The objection to the combined instruction ................ 1070
C. Employer Liability For Retaliation ........................... 1070
1. Retaliation under Title VII .............................. 1071
2. Standards for employer liability for harassment .......... 1072
3. The nature of retaliatory action and the standard for
employer liability ..................................... 1073
D. Combined Retaliation Instruction ............................. 1074
1. Retaliation under Missouri law ........................... 1075
2. Cross's state-law retaliation claim ...................... 1076
III. CONCLUSION ......................................................... 1077
The court finds this last argument unconvincing at best, because it would require an incredible stretch of language and conception to make an argument that an instruction is "overbroad," because it would tend to cause the jury to believe that the defendants would be responsible for rumors, into an argument that the standard applicable to employer liability for retaliation in violation of Title VII was that the employer "knew or should have known" of the retaliation. Nonetheless, there are more fundamental flaws to the Board Members' arguments upon which this court's conclusions are based
Rule 50(b) provides, in pertinent part, as follows:
If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment--and may alternatively request a new trial or join a motion for a new trial under Rule 59.
Furthermore, in light of this court's determination of the applicable standard for employer liability and the nature of the record below, it was not an abuse of discretion for the trial court to deny the Board Members' alternative motion for a new trial on the ground that the verdict was against the weight of the evidence, see Keeper, 130 F.3d at 1314; Schultz, 105 F.3d at 1259, where that alternative motion was also based on an alleged failure to adduce any evidence meeting the "knew or should have known" requirement
The federal provision states,
It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a).