MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW, MOTION FOR NEW TRIAL, AND MOTION TO AMEND JUDGMENT AND PLAINTIFF’S MOTION TO AMEND COMPLAINT
*1147 [[Image here]]
Title VII “is ... neither a general civility code nor a statute making actionable the ordinary tribulations of the workplace.” 1 The defendant in this sex discrimination case argued that this was precisely what the plaintiff was attempting to do. The jury rejected that contention, and following an exceptionally well-tried employment discrimination jury trial, the court is called upon in these post-trial motions to answer, among other things, whether the plaintiff presented sufficient evidence on her Title VII claims to support the jury’s verdict in her favor. Specifically, the court will resolve the defendant’s motions for judgment as a matter of law, for new trial, and to amend judgment. The court must also resolve the plaintiffs motion to amend complaint. 2
I. INTRODUCTION AND BACKGROUND
This sex discrimination lawsuit arose out of Rita Baker’s (“Baker”) employment with the defendant, John Morrell & Co. (“John Morrell”), as a Computer Scale Op *1148 erator in the defendant’s Sioux City, Iowa meat packaging plant. Baker began her employment at John Morrell in 1984, and she continued to work for John Morrell until April of 2001. She initiated this lawsuit, claiming that she was constructively discharged, subjected to disparate treatment and a sexually hostile work environment, and retaliated against for challenging the sexual discrimination she endured at John Morrell — all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The case was tried to a jury for seven days, beginning on September 23, 2002. The case was submitted to the jury in the late afternoon of October 1, 2002. The following afternoon, on October 2, 2002, the jury returned its verdict. It found in favor of Baker on her claims of sexual harassment and retaliation. The jury also found on both of these claims that Baker was constructively discharged, and, pertinent to her retaliation claim, the jury found that John Morrell had failed to prove its “same decision” defense. On Baker’s claim of disparate treatment, the jury found in favor of John Morrell.
The jury awarded the following damages for John Morrell’s wrongful conduct: On her claim of sexual harassment, $250,000.00 for past emotional distress and $50,000.00 for future emotional distress; on her retaliation claim, $75,000.00 for past emotional distress and $10,000.00 for future emotional distress. The jury also awarded $150,000.00 for past emotional distress and $200,000.00 for future emotional distress for Baker’s constructive discharge. Moreover, the jury awarded $14,470.24 for Baker’s past medical expenses and $90,000.00 for future medical expenses on her sexual harassment claim. The jury also found that Baker was entitled to a $33,314.73 award for backpay. Finally, the jury assessed a sizable punitive damages award against John Morrell: $600,000.00 for sexual harassment and $50,000.00 for retaliation. The Clerk of Court entered this judgment on October 2, 2002. 3
The plaintiff in this case is represented by lead counsel Stanley Munger, as well as by Jay Denne and Colby Lessman, all of Munger, Reinschmidt & Denne, Sioux City, Iowa. The defendant is represented by Leslie Stellman of Hodes, Ulman, Pes-sin & Katz, P.A., Towson, Maryland, and by Scott Folkers, in-house counsel for John Morrell in Sioux Falls, South Dakota.
Presently before the court is the plaintiffs Motion to Amend Complaint (Doc. No. 120). The defendant has also filed several post-trial motions, which are before the court as well: Motion for Judgment as a Matter of Law (Doc. No. 131); Motion for New Trial (Doc. No. 133); and Motion to Amend Judgment (Doc. No. 135). Both parties filed timely resistances to the opposing party’s various post-trial motions, and the court finds that the case is ripe for disposition.
The basis of John Morrell’s Motion for Judgment as a Matter of Law, brought pursuant to Federal Rule of Civil Procedure 50, is threefold. First, John Morrell argues that the plaintiff produced insufficient evidence at trial for a reasonable jury to find in favor of the plaintiff on her sexual harassment claim because the evidence failed to show (1) that the harassment was “based on sex”; (2) that the harassment was sufficiently severe or pervasive to have affected a term, condition, or privilege of Baker’s employment; or (3) that John Morrell did not take proper remedial action. Second, the defendant contends that there was no legally sufficient basis for a reasonable jury to find for Baker on her retaliation claim, primarily *1149 because John Morrell asserts that her claim fails for lack of causation. And third, John Morrell argues that it is entitled to judgment as a matter of law because there was no legally sufficient basis for a reasonable jury to find for the plaintiff on her claims of constructive discharge because Baker’s working conditions at John Morrell were not objectively intolerable and because the evidence did not demonstrate that John Morrell intentionally made Baker’s working conditions intolerable in an effort to force her to quit.
In the defendant’s Motion for New Trial, brought pursuant to Federal Rule of Civil Procedure 59, John Morrell submits that it is entitled to a new trial because (1) the court erroneously allowed the unfairly prejudicial testimony of other current and former female John Morrell employees who testified that they had experienced sexual harassment at John Morrell; (2) the court improperly instructed the jury and prejudiced the defendant by including specific allegations of the alleged harassing conduct in Final Instruction No. 3, which outlined the elements of Baker’s sexual harassment claim; (3) the court erroneously permitted hearsay rumor testimony; (4) the court erroneously allowed Baker’s treating general physician to testify regarding the substance and causation of the plaintiffs emotional distress; and (5) in closing arguments, the plaintiffs counsel referred to the sexual harassment that Baker experienced as “terrorist” acts, which John Morrell argues was unwarranted and highly prejudicial to the defendant.
In John Morrell’s last motion, its Motion to Amend Judgment, John Morrell argues that the court should reduce the plaintiffs substantial jury award to $300,000.00, exclusive of backpay, in order to comply with Title VIPs statutory damages cap, as provided for by the Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(3)(D). Moreover, the defendant requests the court further remit Baker’s emotional distress award on the grounds that the award is excessive and not supported by the evidence. John Mor-rell also contends that the jury’s award for punitive damages must be stricken because Baker failed to prove that the defendant acted with the requisite “malice or reckless indifference” to her rights under Title VII. In the alternative, John Morrell requests that the punitive damages award be remitted, arguing that it is excessive and not supported by the evidence.
In the plaintiffs Motion to Amend Complaint, Baker seeks leave of court to amend her complaint to conform to the evidence, pursuant to Federal Rule of Civil Procedure 15, to add a claim under the Iowa Civil Rights Act (“ICRA”), Iowa Code chapter 216. The amendment is critical because only by adding a state-law claim on her sexual harassment and retaliation claims can she escape the Title VII damages liability cap. Baker argues that the defendant was on notice of the state-law claims and was not prejudiced in its defense of the lawsuit because the standards for liability are identical under Iowa law and federal law. In addition, the plaintiff seeks an award of prejudgment interest, which is available under state law but not under federal law.
II. DISCUSSION
The court will begin its analysis by addressing the defendant’s motions for judgment as a matter of law and for new trial, turning next to the plaintiffs motion to amend complaint, and concluding with a discussion of the myriad of issues related to the plaintiffs damages.
A. Defendant’s Motion for Judgment as a Matter of Law
1. Applicable standards
The standards for a motion for judgment as a matter of law are outlined in Rule 50 of the Federal Rules of Civil Pro *1150 cedure. In pertinent part, Rule 50 provides:
(a) Judgment as a Matter of Law.
(1) If during the trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentia-ry basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before the submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.
(b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to 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. In ruling on a renewed motion, the court may:
(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a
matter of law; or
(2) if no verdict was returned;
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
Fed R. Civ. P. 50(a)-(b).
“Judgment as a matter of law is appropriate only when all of the evidence points one way and is susceptible of no reasonable inference sustaining the position of the nonmoving party.”
Manus v. American Airlines, Inc.,
When the motion seeks judgment on the ground of insufficiency of the evidence, the question is a legal one. Hathaway v. Runyon,132 F.3d 1214 , 1220 (8th Cir.1997); Jarvis v. Sauer Sundstrand Co.,116 F.3d 321 , 324 (8th Cir.1997). A jury verdict must be affirmed “ ‘unless, viewing the evidence in the light most favorable to the prevailing party, we conclude that a reasonable jury could have not found for that party.’ ” Stockmen’s Livestock Mkt., Inc. [v. Norwest Bank of Sioux City ],135 F.3d 1236 , 1240-41 (8th Cir.1998) (quoting Chicago Title Ins. Co. v. Resolution Trust Corp.,53 F.3d 899 , 904 (8th Cir.1995)).
Cross v. Cleaver,
*1151 “[Cjonsider the evidence in the light most favorable to the prevailing party, assume that the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party’s evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence.”
Minneapolis Community Dev. Agency v. Lake Calhoun Assoc.,
This standard for consideration of a motion for judgment as a matter of law accords the jury’s verdict substantial deference.
Tilson v. Forrest City Police Dep’t,
Having reviewed the applicable standards, the court turns to an examination of the claims raised in John Morrell’s motion for judgment as a matter of law to determine whether post-trial relief from the jury’s verdict against John Morrell is appropriate.
2. Sufficiency of the evidence — sexu al harassment
Title VII makes it unlawful for an employer “to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). A hostile work environment sexual harassment claim requires that the plaintiff show:
*1152
Stuart v. General Motors Corp.,
*1151 (a) she is a member in a protected group; (b) she was subject to unwelcome sexual harassment; (c) the harassment was based on sex; (d) the harassment affected a term, condition, or privilege of employment; and (e) the employer knew or should have known of the harassment and failed to take proper remedial action.
*1152 a. Based on sex
John Morrell argues that Baker did not establish at trial that the harassment she endured was “based on” her gender. John Morrell argued to the jury and reasserts here in its post-trial motion that Baker’s harassers, Jeff Eichmann and Brian Murphy, were “equal opportunity harassers” who treated male co-workers as poorly as they treated Baker. John Morrell concedes that Eichmann’s and Murphy’s behavior was “rude, boorish, offensive, short-tempered, obnoxious, and demeaning,” but insists that the behavior “was simply workplace conflict exacerbated by the stresses of working on a production line where one worker’s performance constantly affects the other.” [Deft.’s JAML br. at 3-4].
“Employees are entitled to a workplace free from ‘discriminatory intimidation, ridicule, and insult’ motivated by the employees’ membership in a protected class.”
Carter v. Chrysler Corp.,
Whether harassing conduct constitutes discrimination based on sex is determined by whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. See Montandon v. Farmland Indus., Inc.,116 F.3d 355 , 358 (8th Cir.1997) (Montandon); Quick v. Donaldson Co.,90 F.3d 1372 , 1378 (8th Cir.1996) (Quick) (quoting Harris v. Forklift Sys., Inc.,510 U.S. 17 , 25,114 S.Ct. 367 ,126 L.Ed.2d 295 (1993) (Harris) (Ginsburg, J., concurring)). Stated differently, the harassment must be based on the complaining person’s sex. See Montandon,116 F.3d at 358 . In Oncale v. Sundowner Offshore Serv., Inc.,523 U.S. 75 , 81,118 S.Ct. 998 ,140 L.Ed.2d 201 (1998) (Oncale), the Supreme Court said: “[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] ... because of ... sex.’ ”
Scusa,
In Scusa, the plaintiff conceded that her harassers were, as John Morrell portrays Eichmann and Murphy to be, equal opportunity harassers and that they meted out their offensive conduct to both men and women. Id. The Scusa plaintiff testified that her harassers berated her because of factors unrelated to her sex. Id. In Baker’s case, there was ample evidence presented at trial that Murphy and particularly Eichmann treated all of their co-workers badly. However, there was more than sufficient evidence for a reasonable jury to conclude that they treated Baker and other women differently—indeed, worse—than they treated men.
Much of the evidence the jury heard was undeniably gender-based. While harassment alleged to be because of
*1153
sex need not be explicitly sexual in nature,
4
Smith v. St. Louis Univ.,
Moreover, Eiehmann and Murphy frequently referred to Baker as a “stupid bitch.” The Eighth Circuit has held that use of the term “bitch” and other sexually explicit conduct may give rise to an inference of gender-based discrimination:
Although workplace harassment is not “automatically discrimination because of sex merely because the words used have sexual content or connotations,” Oncale v. Sundowner Offshore Servs., Inc.,523 U.S. 75 , 79,118 S.Ct. 998 , 1002,140 L.Ed.2d 201 (1998), gender-based insults, including the term “bitch,” may give rise to an inference of discrimination based on sex, see Burns v. McGregor Electronic Industries, Inc.,989 F.2d 959 , 964 (8th Cir.1993); see also Winsor v. Hinckley Dodge, Inc.,79 F.3d 996 , 1000-01 (10th Cir.1996); 1 Barbara Lindemann & Paul Grossman, Employment Discrimination Law 808 (3d ed.1996) (citing cases).
Carter,
Indeed, John Morrell’s own witness, Marilyn Alcantar, a supervisor at John Morrell, testified that Eiehmann treated both men and women rudely but that he treated women worse than men and with an air of superiority. Baker similarly testified, as did a current John
*1154
Morrell employee, Kay Nilson, and a former John Morrell employee, Georgia Ris-ley. In fact, the jury heard evidence that Eichmann referred to Risley as a “fat cow” — a reference that is relevant to the gender-based inquiry.
See Kimzey v. Wal-Mart Stores, Inc.,
In
Beard v. Flying J, Inc.,
[a] plaintiff ... need not show ... that only women were subjected to harassment, so long as she shows that women were the primary target of such harassment. See Quick v. Donaldson Co.,90 F.3d 1372 , 1378 (8th Cir.1996). Viewing the evidence in the light most favorable to [the plaintiff] a jury could reasonably find that the vast majority of [the harasser’s] activities of a harassing nature was directed toward female employees, and could thus conclude that the harassment of [the plaintiff] was based on sex.
Beard,
Furthermore, the Eighth Circuit Court of Appeals recognized that “[a]ll instances of harassment need not be stamped with signs of overt discrimination to be relevant under Title VII if they are part of a course of conduct which is tied to evidence of discriminatory animus. Harassment alleged to be because of sex need not be explicitly sexual in nature.”
Carter v.
*1155
Chrysler Corp.,
Alcantar’s testimony is also relevant to the inquiry of whether Baker was subjected to gender-based harassment. She testified that the milieu on the plant floor was biased against women and that there was a sense that the packing house industry was still “a man’s world” and that many of the male hourly employees felt that certain jobs should not be performed by women. [Tr., at 1250-52], Much of the evidence presented at trial regarding Eichmann’s boorish and degrading conduct echoed this testimony: Eichmann felt that he could do his job better than anyone else, particularly women, and he was not shy about intimidating others, again, particularly women, and forcing them to comply with his way of working the production line, even when it involved pushing and shoving women on the production line.
In short, the jury rejected John Mor-rell’s “equal opportunity harasser” argument: there was more than sufficient evidence upon which a reasonable jury could find that Baker was treated more harshly than males, even though there was some evidence that Eichmann treated all of his coworkers badly. Further, there was no evidence presented at trial that Murphy treated anyone but Baker with disdain. The court concludes that Baker produced sufficient evidence from which reasonable jurors could infer that Eichmann’s and Murphy’s conduct toward her was based on sex. Therefore, the court denies John Morrell’s motion for judgment as a matter of law on this point, finding that the evidence supports the jury’s conclusion that Baker was subjected to harassment because of her sex.
b. Severe or pervasive
Next, John Morrell contends that, even if Eichmann’s and Murphy’s treatment of Baker was “based on [her] sex,” it was not sufficient, as a matter of law, to affect a term, condition, or privilege of employment,
see Beard,
“For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ”
Meritor,
In determining whether the plaintiff has met this stringent threshold, “[w]orkplace conduct is not measured in isolation; instead, “whether an environment is sufficiently hostile or abusive’ must be judged “by looking at all the circumstances.’ ”
Bowen,
Whether or not a plaintiffs work environment is sufficiently permeated with harassment so as to affect a term, condition, or privilege of employment bears on an examination of several relevant factors.
Harris,
The crux of John Morrell’s argument is that Baker failed to show that the harassment she experienced was anything more than “mere offensive behavior,” which may be rude and inappropriate but is not within the purview of Title VII. John Morrell relies heavily upon the Eighth Circuit’s decision in
Duncan v. General Motors Corp.,
“There is no bright line between sexual harassment and merely unpleasant conduct, so a jury’s decision must generally stand unless there is trial error.”
Hathaway v. Runyon,
Baker’s case is easily distinguishable from the facts of
Duncan.
First, Eichmann yelled at Baker and criticized her ability to perform her job. He berated and humiliated her on the plant floor. Moreover, Baker presented evidence that he turned boxes on his end of the production line, which impeded her ability to efficiently and speedily weigh the boxes when they ultimately came down the line to her weighing station. The totality of Eichmann’s behavior undermined Baker’s ability to do her job. In
Duncan,
Booth exhibited boorish and chauvinistic behavior, but his conduct did not impede the plaintiff from performing her job.
See Duncan,
An analysis of the relevant factors also compels the conclusion that Baker presented sufficient evidence on the fourth element of her sexual harassment claim. Unlike in
Duncan,
Baker proved that Eichmann’s and Murphy’s harassment was frequent, severe, humiliating, and interfered with her work performance.
See, e.g., Duncan,
In any event, John Morrell’s version is contrary to the standard governing motions for judgment as a matter of law because that standard compels the court to view the evidence in the light most favorable to the nonmoving party — here, the plaintiff.
E.g., Stockmen’s Livestock Mkt., Inc.,
Here, the evidence was sufficient to allow a reasonable jury to find that Eichmann and Murphy constantly directed “hip thrusting” gestures toward Baker, that Eichmann regularly referred to Baker as a “bitch,” “stupid bitch,” “dumb bitch,” and “dumb blonde,” and that Eichmann constantly mimicked and made fun of Baker by mhking crying sounds regarding Baker’s requests to use the bathroom as a consequence of her medical condition.
Moreover, Baker endured other isolated but serious acts of harassment. When viewed in light of the cumulative effect of the established plant-wide discriminatory animus toward women and the nearly daily harassment she personally suffered, they demonstrate that Baker was subjected to frequent harassment that pervaded her working environment. Moreover, at minimum, the evidence established that Eichmann’s and Murphy’s discriminatory conduct towards Baker was not infrequent, which is sufficient to survive the defendant’s motion for judgment as a matter of law on this point.
See Bowen,
These other discriminatory acts, which the jury reasonably could have found existed, include: Eichmann telling other male co-workers that he had been to Baker’s home and had “played with” her “pussy” and that it was “black;” Murphy asking Baker for a date, leaving a note on her car asking Baker to call him, giving her a Wonder Woman PEZ candy dispenser and stating that it was Wonder Woman because he “wondered” what Baker looked like naked, spreading rumors that Baker was “good in the sack” and that he had been to Baker’s house and she had answered the door in a robe with her “tits hanging out.” On another occasion, Eichmann walked past Baker and proceeded to grab her arms from behind and, in a mocking fashion, said “Excuse me” as he pressed his groin into Baker. Baker also testified that Eichmann had thrown boxes at her. Moreover, she described a particularly violent encounter with Eichmann in the company parking lot in which he sped directly at her in his truck while she was walking, coming to a screeching halt inches from crashing into her.
The other relevant factors the Eighth Circuit has identified as a consideration in determining whether a work environment was sufficiently severe or pervasive to support a hostile work environment sexual harassment claim are: whether the harassment was physically threatening or humiliating, whether it unreasonably interfered with the employee’s work performance, physical proximity to the harasser, and the presence or absence of other people.
E.g., Carter,
In
Bowen v. Missouri Department of Social Services,
While there is no “mathematically precise test” for determining when conduct in the workplace moves beyond “merely offensive” and into the realm of illegality,
Harris,
On this point,
Estes v. Georgetown University,
There is no bright-line formula or legal standard ... for determining whether the “locker-room atmosphere” described by Ms. Estes was “severe or pervasive.” Judgment as a matter of law is appropriate where there is evidence of only isolated comments, teasing, or. offhand comments, Stewart v. Evans,275 F.3d 1126 , 1133-34 (D.C.Cir.2002); Kidane v. Northwest Airlines, Inc.,41 F.Supp.2d 12 , 16 (D.D.C.1999) (citing Bundy v. Jackson,641 F.2d 934 , 943 n. 9 (D.C.Cir.1981)), but Ms. Estes testified that the comments, such as the physical attributes of female employees, were frequent and that the “locker-room” atmosphere of which she complained, pervasive. It was for the jury to decide whom to believe on the question of whether the evidence taken as a whole crossed the line between mere vulgarity, which is not intended to be “purge[d] [from] the workplace” by Title VII, Baskerville v. Culligan Int’l Co.,50 F.3d 428 , 430 (7th Cir.1995), and offensive conduct that was sufficiently severe or pervasive to alter conditions of employment.
Estes,
Here, Baker and other witnesses (both male and female and called by both Baker and by John Morrell) testified to the anti-women sentiment that permeates the plant floor at John Morrell. Baker also testified extensively as to the derogatory and demeaning conduct directed at her specifically. Accordingly, the court concludes that there was more than sufficient evidence presented at trial from which a reasonable jury could conclude that the harassment directed towards Baker was severe or pervasive so as to have affected a term, condition, or privilege of her employment.
John Morrell next argues that, because Baker did not demand Eichmann’s termination when Steve Joyce, the director of human resources, asked for her input as to the appropriate disciplinary action that should be taken against Eichmann, her working environment could not have been hostile within the meaning of Title VII. It cites
Woodland v. Joseph T. Ryerson & Son, Inc.,
The court emphasized that an actionable hostile work environment is one that is both objectively and subjectively abusive. Id. at 843. A Title VII plaintiff must *1161 perceive her working environment to be hostile because “if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” Id. On the issue of whether the Woodland plaintiff subjectively perceived his workplace to be abusive, the court held that the fact he was offered the opportunity to have his harasser discharged but declined was relevant to his perception of the working environment. See id. at 844. The court reasoned that the plaintiffs choice in preferring to forget about the incident rather than to take action “was strong evidence that, while offensive, these incidents did not subjectively affect the conditions of Woodland’s employment.” Id.
Baker’s case is readily distinguishable from Woodland. John Morrell never told Baker that it would discharge Eichmann if she so chose. Instead, it asked her an open-ended question about how she would like the situation with Eichmann resolved. Baker responded that she simply wanted it to end, whereas the Woodland plaintiff simply wanted to forget about it. Unlike Woodland’s choice, Baker’s choice demonstrates that she indeed perceived her working environment to be abusive. In addition, Baker adduced ample evidence at trial that she subjectively believed her working conditions were altered by the harassment. Unlike Woodland, she complained of the harassment on numerous occasions.
Moreover, John Morrell conceded at trial that when Baker lodged one particular complaint with Joyce, he expressed frustration and told her that she and Eichmann had a “hard on” for each other and instructed her to try to get along with him. In Woodland, the Eighth Circuit noted that, with regard to the incidents of objectively abusive racial harassment that the plaintiff did object to, the defendant acted promptly to remedy the situation. Id. Joyce’s crude comment in the face of Eichmann’s demonstrated and continuous pattern of harassing behavior towards Baker, coupled with John Morrell’s failure to adequately respond to Baker’s complaints, is the antithesis of the prompt and decisive remedial action taken by the Woodland defendant and warrants a different result than that reached by the Woodland court.
Based on the frequency of the harassment, its severity and physically threatening nature, its intent to humiliate, degrade, and belittle the plaintiff, its actual interference with Baker’s work performance, its impact on Baker’s psychological well-being, and its omnipresence in John Mor-rell’s Sioux City, Iowa plant, the court finds that Baker produced sufficient evidence from which a reasonable jury could conclude that she demonstrated that the cumulative effect of the harassment she suffered satisfied the fourth element of her sexual harassment claim. Therefore, the court overrules John Morrell’s contention that it is entitled to judgment as a matter of law on this ground as well.
c. Proper remedial action
John Morrell’s final argument on its challenge to the sufficiency of the evidence regarding Baker’s 'prima facie case of sexual harassment is that no reasonable jury could conclude that John Morrell failed to take appropriate measures to respond to Baker’s complaints and end the harassment. 5 Baker resists, pointing in particu *1162 lar to the years of reported ongoing harassment she suffered at the hands of, among others, one individual who was reprimanded only once despite Baker’s and other female employees’ numerous complaints.
The Eighth Circuit Court of Appeals has instructed that “[o]nce an employee complains to her employer about sexual harassment by a coworker, the employer is on notice and must take proper remedial action to avoid liability under Title VII.”
Hathaway v. Runyon,
The Eighth Circuit Court of Appeals has observed that factors a court may consider when assessing the reasonableness of an employer’s remedial measures include:
the amount of time elapsed between the notice of harassment, which includes but is not limited to a complaint of sexual harassment, and the remedial action, and the options available to the employer such as employee training sessions, disciplinary action taken against the harasser(s), reprimands in personnel files, and terminations, and whether or not the measures ended the harassment.
Stuart, 211
F.3d at 633 (citing
Carter v. Chrysler Corp.,
In this case, the evidence establishes that Baker complained about Eichmann and Murphy upwards of 15 times, as well as having complained about BrownRowley’s treatment of her. John Morrell presented evidence that it performed a cursory investigation of some of those claims, but Joyce testified that he never considered them to be or explored the possibility that they were “sexual harassment” complaints. John Morrell spoke to Baker’s harassers but only formally disci *1163 plined Eichmann on one occasion. With respect to that incident, John Morrell placed a letter of discipline in his personnel file. Eichmann’s file contained no other references to the complaints Baker lodged against him. Indeed, with the exception of one assault complaint against him by another female employee, Eichmann’s personnel file was bereft of evidence that should have been a red flag to John Morrell that Eichmann posed a problem to its female employees. The jury heard evidence that other employees complained of harassment by Eichmann, but his personnel files did not reflect this pattern of harassment.
In addition, while John Morrell issued one formal disciplinary letter against Eichmann, on the majority of occasions on which it took any action, it simply instructed the parties to “get along.” The jury easily could have concluded that this “remedial action” was not reasonably calculated to end the harassment. Indeed, in light of the fact the harassment continued unabated for years and John Morrell continued to employ the same strategy to deal with the problem, the jury could have concluded that John Morrell’s remedial action was wholly unreasonable, especially because it had a demonstrated history of ineffectiveness.
And while John Morrell maintained a clear1 chain-of-command for making complaints, which Baker utilized, the jury also heard evidence that Baker was discouraged from reporting harassment. Joyce admitted that he told Baker and Eichmann that they had a “hard-on” for each other and that they should work it out between themselves. In addition, Baker testified that Brown-Rowley told Baker that Joyce was tired of seeing her and did not want to hear her complain anymore. Moreover, Baker testified that when she complained to Brown-Rowley about her unfair workload or about bathroom breaks, Brown-Rowley told her to “shut the fuck up” and that she was “sick of Baker’s shit.” Baker reported these incidents to Joyce. Joyce contacted Brown-Rowley about Baker’s allegations, but, when Brown-Rowley denied them, Joyce concluded there was insufficient evidence of discrimination. He merely instructed Brown-Rowley to be sensitive about the situation and never contacted Baker to discuss the status of her complaint.
John Morrell never considered moving Murphy or Eichmann from the scale area, suspending him, or providing him training. Instead, it issued a single letter of reprimand after more than one dozen complaints. Given Eichmann’s long history of harassing behavior towards Baker and other female John Morrell employees, Baker’s vocalized aversion to her working conditions, the overtly sexual language directed towards Baker and admitted to by Murphy and Eichmann, and the years of harassment that never ceased, the jury could reasonably have determined that John Morrell’s actions were not reasonable. Accordingly, the court cannot say that no reasonable jury could have concluded that Baker proved by the greater weight of the evidence the fifth element of her sexual harassment claim against John Morrell.
d. Summary
Upon viewing the evidence in the light most favorable to the plaintiff, without weighing evidence or making credibility determinations, the court concludes that the jury reasonably could have drawn the necessary factual inferences to satisfy each element of her hostile-work-environment sexual harassment claim. Baker produced sufficient evidence to establish her hostile work environment claim as a matter of law, and on this evidence a reasonable jury could find that Baker was treated differently because of her sex and that she *1164 worked in a hostile environment that “altered the conditions” of her employment. Therefore, the court denies John Morrell’s motion for judgment as a matter of law on this claim and turns next to John Morrell’s contention that it is entitled to judgment as a matter of law on Baker’s retaliation claim.
3. Sufficiency of the evidence — retali ation
Under the sexual discrimination provisions of Title VII, 42 U.S.C. § 2000e-3(a), an employer is forbidden from retaliating against employees for opposing sexual discrimination.
6
Bogren v. Minnesota,
In the final instructions submitted to the jury at the close of the case, the instruction on retaliation outlines Baker’s allegations regarding what actions she contends were retaliatory. The pertinent instruction provides:
Ms. Baker contends that John Morrell subsequently took adverse employment action against her consisting of management refusing to take active steps to prevent Eichmann and Murphy from further sexual harassment, knowing that there was a likelihood that it would continue and that it would be very disturbing to Ms. Baker. She also alleges adverse employment action consisting of Kathi Brown blaming Ms. Baker for reporting the harassment to John Morrell and the Civil Rights Commission when she told Ms. Baker she “was sick of (her) shit and that she (Baker) drug her into the whole mess” and telling her to “shut the fuck up”; adding work to Ms. *1165 Baker’s job; refusing to provide help to her, even though Ms. Brown provided help to other, similarly situated, employees; and by refusing to give Ms. Baker equal breaks. Finally, she contends that adverse employment action consisted of forcing her to quit her job, or “constructively discharging” her, which will be explained in more detail in Final Jury Instruction No. 7.
(Doc. No. Ill, Final Instructions, at 27).
John Morrell does not contend that Baker did not engage in protected activity, but makes several challenges to the sufficiency of the evidence on the remaining two elements of Baker’s retaliation claim. Specifically, it argues that the evidence does not support a finding (1) that John Morrell retaliated against Baker by making her job more difficult, (2) that John Morrell permitted the harassment to continue or that it did so in retaliation, and (3) that Baker was constructively discharged. 7
a. Increased job duties, refusal to assist, denial of breaks
i. Adverse employment actions? Baker presented evidence at trial that Brown-Riley added to her job responsibilities, refused to provide Baker with assistance, and denied her breaks in retaliation for Baker’s opposition to sexual harassment at John Morrell. John Morrell contends that, because the jury found against Baker on her disparate treatment claim, it concluded that she was not subjected to these adverse employment actions as a matter of law. John Morrell argues that “[i]n light of the jury’s verdict in Defendant’s favor as to Plaintiffs disparate treatment claim, this Court must conclude that the evidence does not support a finding that the Defendant’s purported assignment of additional job duties was an ‘adverse employment action’ in regards to her claim of retaliation.” [Deft’s JAML br. at 19-20],
The court cannot accept John Morrell’s argument because it fails to consider that the jury may have concluded that Baker was subjected to an adverse employment action but that the adverse action was motivated by something other than Baker’s gender. For the jury to have found in Baker’s favor on her disparate treatment claim, Baker would had to have proved that she suffered an adverse employment action under circumstances which give rise to an inference of unlawful sexual discrimination.
See Wensel v. State Farm Mut. Auto. Ins. Co.,
Pertinent to her retaliation claim, Baker need not show that John Morrell was motivated by her gender when it added to her job duties, refused to provide her with assistance, and denied her bathroom breaks. Instead, she must establish that John Morrell took these actions in retaliation for her opposition to harassment. Thus, the verdict in favor of John Morrell on Baker’s disparate treatment claim does not foreclose the jury from concluding that Baker was subjected to these adverse employment actions. Furthermore, it does not preclude a finding that the underlying motivation for these actions was retaliatory, even if the jury found that John Mor-rell was not motivated by gender discrimination.
The court finds that Baker presented sufficient evidence to show that her supervisor, Brown-Rowley, subjected her to the alleged adverse employment actions. Baker testified that Brown-Rowley added job responsibilities to Baker’s scale operator position after Baker filed a charge of discrimination. These added duties caused Baker to make mistakes, for which Brown-Rowley consequently wrote up Baker. Baker also testified that additional job duties required her to assume some of the job responsibilities of quality control employees or forepersons, essentially requiring Baker to learn new skills.
Moreover, there was evidence that after Baker filed her discrimination charge, Brown-Rowley denied her assistance on the production line, refused to allow Baker to take bathroom breaks, and repeatedly yelled at her for making mistakes, which Baker testified were caused by the stress of her added job responsibilities. Brown-Rowley also swore at Baker and told her that she was upset that Baker “dragged her into the mess” between Baker and Eichmann. Brown-Rowley also discouraged Baker from making further complaints by telling her that Joyce did not want to hear her complain anymore.
This court has previously addressed the concept of “adverse employment action” in
Cherry v. Menard, Inc.,
A constructive discharge occurs when an employer deliberately renders the employee’s working conditions intolerable and thus forces [the employee] to quit his [or her] job. Klein v. McGowan,198 F.3d 705 , 709 (8th Cir.1999) (citing Kimzey,107 F.3d at 574 ); see also Johnson v. Runyon,137 F.3d 1081 , 1083 (8th Cir.) (internal quotations omitted), cert. denied,525 U.S. 916 ,119 S.Ct. 264 ,142 L.Ed.2d 217 (1998) (“A constructive discharge occurs when an employer renders the employee’s working conditions intolerable, forcing the employee to quit.”); Summit v. S-B Power Tool,121 F.3d 416 , 421 (8th Cir.1997) (internal quotations omitted), cert. denied,523 U.S. 1004 ,118 S.Ct. 1185 ,140 L.Ed.2d 316 (1998) (citing same). The intent element is satisfied by a demonstration that quitting was “a reasonably foreseeable consequence of the employer’s discriminatory actions.” Id. The employee has an obligation to act reasonably by not assuming the worst and not jumping to conclusions too quickly. See Howard v. Burns Bros., Inc.,149 F.3d 835 , 841-42 (8th Cir.1998).
“ ‘[Ijntolerability of working conditions is judged by an objective standard, *1167 not the [employee’s] subjective feelings.’ ” Gartman v. Gencorp, Inc.,120 F.3d 127 , 130 (8th Cir.1997) (quoting Allen v. Bridgestone/Firestone, Inc.,81 F.3d 793 , 796 (8th Cir.1996)). First, the conditions created by the employer must be such that a reasonable person would find them intolerable. See Gartman,120 F.3d at 130 ; Tidwell v. Meyer’s Bakeries, Inc.,93 F.3d 490 , 494 (8th Cir.1996); Parrish v. Immanuel Medical Ctr.,92 F.3d 727 , 732 (8th Cir.1996); Allen,81 F.3d at 796 ; Bradford v. Norfolk S. Corp.,54 F.3d 1412 , 1420 (8th Cir.1995); Smith [v. World Ins. Co.], 38 F.3d [1456,] 1460 [(8th Cir.1994)]; Hukkanen v. International Union of Operating Eng’rs, Hoisting & Portable Local No. 101,3 F.3d 281 , 284 (8th Cir.1993). Second, the employer’s actions “must have been deliberate, that is, they ‘must have been taken with the intention of forcing the employee to quit.’ ” Delph,130 F.3d at 354 (quoting Johnson v. Bunny Bread Co.,646 F.2d 1250 , 1256 (8th Cir.1981)); Gartman,120 F.3d at 130 ; Tidwell,93 F.3d at 494 ; Parrish,92 F.3d at 732 ; Allen,81 F.3d at 796 ; Smith,38 F.3d at 1461 ; Hukkanen,3 F.3d at 284 . The Eighth Circuit Court of Appeals has explained that, “in the absence of conscious intent ..., the intention element may nevertheless be proved with a showing that the employee’s ‘resignation was a reasonably foreseeable consequence’ of the [discriminatory or retaliatory conduct].” Delph [v. Dr. Pepper Bottling Co. of Paragould, Inc.], 130 F.3d [349,] 354 [(8th Cir.1997) ] (quoting Hukkanen,3 F.3d at 285 ); Gartman,120 F.3d at 130 (also citing Hukkanen). Finally, “to act reasonably, an employee has an obligation not to assume the worst and not to jump to conclusions too quickly”; therefore, “[a]n employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged.” West v. Marion Merrell Dow, Inc.,54 F.3d 493 , 498 (8th Cir.1995).
Cherry,
The court will not rehash its discussion made on John Morrell’s motion for summary judgment, but it suffices to say that Baker presented sufficient evidence to show that the actions she was subjected to after returning from her December of 1999 discharge were adverse actions. While retaliatory conduct must be “ ‘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!,]”
Kim v. Nash Finch, Co.,
John Morrell argues that the evidence showed that Brown-Rowley relieved Baker of added job duties when Baker complained that they were too difficult and that Brown-Rowley allowed Baker to take needed restroom breaks. However, John Morrell’s argument can only prevail by asking the court to make credibility determinations — and, again, the court cannot make such determinations on this motion for judgment as a matter of law.
See Troknya,
*1168
There was sufficient evidence for a reasonable jury to conclude that Brown-Rowley subjected Baker to adverse employment actions after Baker filed her charge of discrimination, and the court will not set aside the jury’s finding based solely on John Morrell’s witnesses’ self-interested, contradictory testimony. The jury could not have believed Baker’s testimony without drawing adverse conclusions about the credibility of John Morrell’s witnesses, and the jury apparently chose to accept Baker’s account and to reject Brown-Rowley’s denials. John Morrell’s disagreement with that choice does not justify disturbing the verdict.
See Reeves,
ii. Causal connection. John Morrell further contends that, even if the court finds that Brown-Rowley did subject Baker to the alleged adverse employment actions by way of increased job duties and denial of production line assistance, the evidence does not support a finding of a causal connection between Baker’s harassment complaints and John Morrell’s assignment of increased job duties. 8 Here, Baker alleges, inter alia, that when she returned to John Morrell in February of 2000 after being reinstated, Brown-Row-ley retaliated against her.
The third and final element of a retaliation claim requires a showing that the adverse action was causally linked to the protected conduct.
See Montandon v. Farmland Indus., Inc.,
The court disagrees with John Morrell’s characterization of the evidence. Indeed, Baker’s evidence of temporal proximity is compelling. However, her evidence consisted of substantially more than mere timing. She not only presented evidence of temporal proximity, the jury also heard evidence of statements by BrownRowley that Brown-Rowley was “sick of [Baker’s] shit”; that she was upset Baker “dragged her into this mess” and that Baker should stop reporting harassment to Joyce because he was tired of hearing Baker complain. In addition, she testified that her relationship with Brown-Rowley and with Joyce changed after she filed her discrimination charge. In short, this is not a case like
Kiel v. Select Artificials, Inc.,
As noted, the final element in the
prima facie
case of retaliation is that the adverse action was causally linked to plaintiffs protected activity. The facts of
Coffman v. Tracker Marine, L.P.,
The person making the adverse employment decisions, Beckler, was the same person whose behavior had been the subject of Coffman’s harassment complaint. There was evidence that Beck-ler’s demeanor and his relationship with Coffman changed after the complaint. His exaggerated reactions to Coffman in the hallway support an inference of hostility towards Coffman in response to her complaint. This evidence could well have been used by the jury to draw an inference that Beckler’s actions in changing Coffman’s duties and denying her vacation time had been taken in response to the complaint. The timing of Beckler’s actions in relation to the harassment complaint, when considered along with the other evidence of retaliatory motive, also supports a reasonable inference that his actions were motivated by the complaint. See O’Bryan v. KTIV Television,64 F.3d 1188 , 1194-95 (8th Cir.1995). Finally, the jury easily could have disbelieved Tracker Marine’s proffered legitimate reasons for the actions and found they were pretextual.
Coffman,
Similarly, in this case, although Brown-Rowley was not initially the target of Baker’s harassment complaint, Brown-Row-ley’s behavior toward her changed suddenly and drastically after Baker made the formal complaint and after Brown-Rowley was required to testify before the Sioux City Human Rights Commission. Baker later reported Brown-Rowley’s retaliatory behavior to Joyce, who spoke to Brown-Rowley about the complained-of incidents. Brown-Rowley admitted to the substance of her conduct, but Joyce did not investigate further nor seek to determine the motivation for her maltreatment of Baker. In addition, the McDonnell Douglas burden-shifting paradigm allows the defendant an opportunity to rebut the inference of discriminatory intent that arises with the establishment of a prima facie case, but John Morrell did not attempt to offer a legitimate, nondiscriminatory reason for Brown-Rowley’s conduct. Instead, John Morrell denied the other alleged retaliatory actions by Brown-Rowley and denied that those that did occur were retaliatory. In sum, John Morrell offered no explanations for the actions, and a jury could reasonably have found Baker’s allegations to be credible and the result of unlawful retaliation.
In conclusion, the jury heard, and was entitled to credit, evidence that.Brown-Rowley subjected to Baker to adverse employment actions that were the result of Baker’s opposition to harassment and her filing a discrimination charge. Therefore, the court denies John Morrell’s motion for judgment as a matter of law on this issue.
b. Allowing the harassment to continue
Baker also alleged that John Morrell permitted Eichmann and Murphy to continue harassing her in retaliation for Baker’s opposition to harassment. On this motion, John Morrell argues that there was no evidence that it failed to adequately respond to Baker’s complaints of harassment and permitted it to continue. 9 The *1170 court, once again, disagrees with John Morrell’s characterization of the evidence. As noted earlier, Baker testified that, after she filed a charge of discrimination, Brown-Rowley was less receptive to Baker’s complaints about Eichmann and Murphy and that she discouraged Baker from reporting harassment to Joyce. By discouraging her from reporting harassment and by telling Baker to “shut the fuck up” and that she was “sick” of B.aker’s “shit” because Brown-Rowley was angry about being “dragged into” Baker’s case, a jury could reasonably conclude that Brown-Rowley intentionally permitted harassment to continue by failing to respond to Baker’s complaints in retaliation for Baker’s opposition to harassment. John Mor-rell, therefore, is likewise not entitled to judgment as a matter of law based on this argument, either.
4. Sufficiency of the evidence — con structive discharge
Baker left John Morrell in March of 2000, and — after several months of sick leave — formally resigned in February of 2001. She claimed that she was forced to leave in order to escape intolerable working conditions. John Morrell argues that the evidence is insufficient to support the jury’s finding that Baker had been constructively discharged. Constructive discharge is not a cause of action in and of itself. The theory is merely a mechanism that allows a plaintiff to avoid the requirement of showing that she did not leave her job voluntarily. Nevertheless, given its importance to Baker’s claims, the court will address it separately. Whether Baker was constructively discharged is relevant to her sexual harassment claim because it entitles her to an award of backpay and is relevant to her retaliation claim because it can constitute the requisite adverse employment action. 10
“To constitute a constructive discharge, the employer must deliberately create intolerable working conditions with the intention of forcing the employee to quit and the employee must quit.”
Tidwell v. Meyer’s Bakeries, Inc.,
The evidence must be sufficient to show that (1) a reasonable person in Baker’s position would have found that the conditions of her employment were intolerable,
Coffman,
a. Intolerableness of working conditions
John Morrell argues that Baker’s working conditions were not objectively so intolerable that a reasonable person would feel compelled to quit. In support of its contention, John Morrell again mischaracterizes the evidence and asserts that, because Baker was not subjected to harassment for nine months prior to her decision to leave, she could not have felt compelled to quit. While it is true that remaining in allegedly intolerable working conditions for a significant period of time after an employee determines that she has no choice but to leave would belie a plaintiffs assertion that she subjectively felt that her working conditions were intolerable,
Wensel,
Furthermore, Baker was a long-time employee who had complained to John Morrell on countless occasions about harassment. She was a dedicated and loyal worker making an unreciprocated effort to improve her working conditions. John Morrell argues that Baker’s constructive discharge claim cannot stand on her allegation that she felt compelled to leave based on the defendant’s inadequate response to the harassment because John Morrell investigated all of her complaints, disciplined the harassers, and included Baker in the disciplinary process. The court found previously, however, that John Morrell’s response to Baker’s complaints was not adequate but was merely superficial. She was subjected to continuous harassment for years, yet John Morrell’s only action against Eichmann was a single letter of reprimand in his personnel file. Apart from “getting their side of the story,” John Morrell took no action against Murphy, Ridge, Brown-Rowley, or the several other employees who Baker reported.
In
Marrero v. Goya of Puerto Rico, Inc.,
Marrero filed a Title VII action against her employer and, inter alia, alleged that she had been constructively discharged. Id. at 14. The parties went to trial, and the jury returned a verdict in favor of Marrero. Id. at 13. The employer argued that, because Marrero’s retaliation claim failed as a matter of law, her constructive discharge claim was likewise unsupported by the evidence. Id. at 27. The First Circuit recognized that the fact Marrero had been subjected to a sexually hostile work environment was insufficient on its own to support her constructive discharge claim, but rejected the employer’s contention that retaliatory action, though insufficient to survive as a separate claim, was not relevant to her constructive discharge claim. Id. at 28.
*1173 Pertinent to this court’s consideration of Baker’s assertion that her working conditions were objectively intolerable, the First Circuit reasoned:
[T]he fact that the plaintiff endured a hostile work environment — without more — will not always support a finding of constructive discharge. See Landgraf v. USI Film Prods.,968 F.2d 427 , 430 (5th Cir.1992) (“To prove constructive discharge, the plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.”). Rather, the jury must find that the working conditions were so unpleasant that “staying on the job while seeking redress [would have been] intolerable.” Keeler v. Putnam Fid. Trust Co.,238 F.3d 5 , 10 (1st Cir.2001). In addressing that question, however, the jury reasonably can take into account how the employer responded to the plaintiffs complaints, if any.
Id.
In
Marrero,
the court concluded that the plaintiff reasonably determined that remaining at work while pursuing remedies short of resignation was not a viable option.
Id.
In reaching that conclusion, the court considered the plaintiffs perception of the likelihood that the harassment would continue based on her employer’s previous remedial actions.
Id.
Because Marrero had been subjected to years of continuous harassment and the inadequacy of her transfer to a different position, the court found that she “reasonably believed that her working conditions at Goya would not change and that she could only anticipate more of the same intolerable harassment. If she wanted to avoid further harm, she would have to leave work entirely.”
Id.
at 29 (citing
Cortes v. Maxus Exploration Co.,
The factors that the Marrero court identified as coloring the plaintiffs assessment of the likelihood of her working conditions improving are present in Baker’s case. See id. Baker was subjected to years of harassment. Indeed, in Marrero, the plaintiff had endured a year and one-half of harassment, while Baker endured several years. The harassment present in Mar-rero was arguably more severe, but it was not as prolonged, and it was confined to one harasser. Moreover, like Marrero, Baker repeatedly complained to management about the harassment, yet management did not take any meaningful action. While it is true that there would be brief respites after Joyce talked to Baker’s harassers, the harassment inevitably began anew. And lastly, when the harassment continued after filing a formal charge of discrimination, Baker reasonably concluded that, after years of trying to work with John Morrell to address her hostile work environment, her working conditions at John Morrell were not going to change and that, if she did not resign, she would have to endure being harassed. When Baker quit, she had no option but to work alongside Eichmann, Murphy, and Brown-Rowley, and Brown-Rowley discouraged her from making any further complaints to human resources. Under these circumstances, which included years of harassment, working alongside her harassers, and being told that John Morrell was “sick of her shit,” Baker reasonably determined that her working conditions were not going to improve. At this point, it became clear to her that further attempts to correct her working conditions would be futile.
In order to override the jury’s verdict, the court would have to find that, after drawing all reasonable inferences in favor of the verdict, the evidence is insufficient to support the jury’s finding that a reasonable person in Baker’s position would have felt compelled to quit.
See Duncan,
300
*1174
F.3d at 933 (citing
Blackmon v. Pinkerton Sec. & Investigative Servs.,
b. Intentionally made working conditions intolerable
John Morrell also contends that Baker failed to present sufficient evidence to establish its liability for sexual discrimination by constructive discharge because she failed to prove that it deliberately created intolerable working conditions with the intention of forcing her to quit. To be liable for constructive discharge, “an employer must have intended or
at least reasonably foreseen
that the employee would quit as a result of the unlawful working conditions it created, and the employee must have given it a reasonable opportunity to fix the problem.”
Jaros v. LodgeNet Entertainment Corp.,
As this court stated in
Delashmutt v. Wis-Pak Plastics, Inc.,
John Morrell attempts to distinguish the facts of this case from cases in which the Eighth Circuit has upheld constructive dis
*1175
charge claims where the plaintiffs’ complaints were met by indifference. Namely, John Morrell contends that
Ogden v. Wax Works, Inc.,
Ogden filed a complaint in federal court, alleging Title VII violations. Id. The case went to trial, and the jury returned a verdict in favor of Ogden. Id. at 1002. Pertinent to Baker’s case, the jury found that Ogden had been constructively discharged and awarded her backpay. Id. The defendant moved for judgment as a matter of law, arguing, inter alia, that there was insufficient evidence to support Ogden’s constructive discharge. Id. at 1007-08. The district court and the Court of Appeals for the Eighth Circuit disagreed. Id. at 1008. Given the defendant’s response to Ogden’s complaints, the Ogden court held that a reasonable jury could have concluded that Ogden quit because she reasonably believed she had no chance for fair treatment. Id.
John Morrell attempts to distinguish its response to Baker’s complaints from the Ogden defendant’s response by arguing that John Morrell conducted thorough investigations of Baker’s complaints, disciplined her harassers, and included Baker in the investigatory process. While John Morrell did look into many of Baker’s complaints, the evidence does not suggest John Morrell thoroughly investigated them. Indeed, like Ogden’s employer, at every turn John Morrell determined that Baker, Eichmann, and Murphy simply had personality conflicts. Far from disciplining Eichmann, Murphy, and others, Joyce urged them to get along. Furthermore, Joyce merely asked Brown-Rowley about Baker’s allegations toward her. Because Baker’s and Brown-Rowley’s versions of the complained-of incident differed, Joyce determined there was insufficient corroboration of Baker’s allegations and did not discipline Brown-Rowley nor contact Baker about his decision not to pursue her complaint further.
Indeed, Joyce was unequivocal on the stand when at trial he testified that he never considered Baker’s complaints to be *1176 allegations of sexual harassment. Accordingly, he did not respond to her complaints as anything more than personality clashes on the cut floor of the plant. Given the lewd language and conduct Baker reported, the court is hard-pressed to understand why Baker’s complaints did not raise sexual harassment “red flags.” Furthermore, after Baker filed her discrimination charge, she asked that John Morrell’s “sexual harassment is illegal” poster be distributed to Eichmann and Murphy, but John Morrell did not give them the poster, nor did it provide Eichmann or Murphy with any sexual harassment training.
The evidence established that Baker did not want to leave John Morrell and that she enjoyed her job there. She made every effort possible to remedy her work environment, but when Brown-Rowley told Baker not to complain to Joyce anymore, it became abundantly clear to Baker that she would not receive fair treatment at John Morrell. After years of failing to take adequate corrective measures to innumerable complaints, a reasonable jury could have found that it was reasonably foreseeable to John Morrell that its continued inaction would lead Baker to quit, having concluded that her only alternative to resignation was to endure continued harassment. John Morrell’s inadequate and superficial response to Baker’s complaints makes application of the Ogden court’s reasoning strikingly appropriate to this case and warrants the same finding' — • specifically, that Baker presented sufficient evidence to support her constructive discharge claim because it was reasonably foreseeable to John Morrell that its response would lead Baker to conclude she had no chance for fair treatment.
Application of the
Kimzey
court’s reasoning compels the same result. In
Kim-zey,
the plaintiff worked at Wal-Mart and was subjected to ongoing harassment from the time she began working at Wal-Mart until she quit.
Kimzey,
On appeal, Wal-Mart argued that Kim-zey failed to prove she was constructively discharged. Id. at 574. The Court of Appeals for the Eighth Circuit rejected Wal-Mart’s argument and held that management’s knowledge of the harassment, the frequency of her complaints, and Wal-Mart’s failure to act on that knowledge and on her complaints rendered Kimzey’s working conditions intolerable. Id. This is so because Wal-Mart’s indifference to her complaints was increasingly upsetting to Kimzey. Id.
The same is true in Baker’s case. She complained to management for years about Eichmann’s conduct, yet instead of implementing corrective measures or disciplining Eichmann or Murphy, she was told she and Eichmann had a “hard on” for each other and was discouraged from making complaints because Joyce was “sick of her shit.” Baker was clearly upset by John Morrell’s treatment of her and what she perceived to be indifference and frustration with her frequent complaints. While all of Baker’s testimony was evincive and emotionally charged, it was apparent that one of the things that upset Baker most was when, after Brown-Rowley’s comment that Joyce did not want to hear any more complaints from Baker, she reasonably determined that Joyce was not going to help her remedy the situation. Brown-Rowley’s discouragement from lodging further com *1177 plaints, coupled with the years of unreme-died harassment in the face of numerous complaints, amounted to a situation in which it was reasonably foreseeable that Baker would find all of her attempts to improve her intolerable working conditions foreclosed and would quit, rather than continue to suffer the intolerable conditions. See id. Therefore, Baker produced sufficient evidence to satisfy the second prong of her constructive discharge claim, and John Morrell is not entitled to judgment as a matter of law.
Having concluded that Baker presented sufficient evidence that, when viewed in the light most favorable to her and drawing all reasonable inferences in her favor, supports each of the claims on which she prevailed at trial, the court denies John Morrell’s motion for judgment as a matter of law and turns next to its motion for new trial.
B. Defendant’s Motion for New Trial
1. Applicable standards
Federal Rule of Civil Procedure 59, entitled “New Trials; Amendment of Judgments,” states, in relevant part, as follows: “A new trial may be granted to all or any of the parties and on all or part of the issues ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts in the United States.... ” FED. R. CIV. P. 59(a). While the court will discuss the applicable standards in some greater detail when relevant, the majority of John Morrell’s objection on this Rule 59 motion center on evidentiary rulings. Therefore, pertinent to those objections, the governing standard is whether the allegedly erroneous evidentiary ruling “was so prejudicial that a new trial would likely produce a different result.”
Bevan v. Honeywell, Inc.,
John Morrell moved for a new trial on five discrete grounds. First, John Mor-rell contends that the court erroneously admitted the testimony of four current and former female John Morrell employees. Second, it contends that the court’s jury instructions were improper in that they contained specific allegations, the inclusion of which John Morrell argues was highly prejudicial. Third, John Morrell asserts that the court erroneously permitted the admission of evidence concerning a rumor allegedly spread by Murphy about his relationship with Baker. Fourth, John Morrell believes that the court erred in permitting Baker’s treating physician to testify concerning the substance and causation of Baker’s emotional distress. And finally, John Morrell contends that a comment made by plaintiffs counsel during his closing argument was extremely prejudicial and warrants a new trial.
2. Was the testimony of other John Morrell female employees so unfairly prejudicial that a new trial is warranted?
In support of its motion for new trial on the ground that admission of the testimony of Gloria Windle, Kay Nilson, Debra Cana-dy, and Georgia Risley was unduly prejudicial, distracting, and irrelevant, John Morrell re-asserts the same arguments it asserted in its second motion in limine, which sought to exclude the testimony of Windle and Canady. The court previously examined these arguments and refused to exclude the plaintiffs witnesses’ testimony, rejecting the defendant’s Federal Rules of Evidence 402 and 403 arguments. The court will, however, re-examine its previous conclusion in light of the testimony actually presented at trial.
“An allegedly erroneous evidentiary ruling does not warrant a new trial ‘unless the evidence was so prejudicial that a new trial would likely produce a different re-
*1178
suit.’ ”
Harrison v. Purdy Bros. Trucking Co.,
The second irrelevant and improper matter that defense counsel inquired about was the plaintiffs receipt of unemployment compensation benefits. Id. Despite the fact that the court ruled that the benefits were not deducible from the plaintiffs damages and, therefore, were irrelevant, the court permitted counsel to question the plaintiff about unemployment benefits to show the plaintiffs failure to mitigate his damages by finding another job. Id. And third, defendant’s counsel repeatedly referred to the plaintiffs religion and, in addition, tried to impeach another witness by implying the witness was anti-Semitic. Id.
The plaintiff appealed the trial court’s denial of his post-trial motions, and the Eighth Circuit reversed. The issue before the Silbergleit court was whether questions by counsel that placed prejudicial information before the jury warranted a new trial. Id. at 397. In this case, the court ruled that “the mix of religion, wealth and receipt of unemployment benefits presented a powerful combination of irrelevant evidence having no bearing on the merits of the case, that were designed to impassion and prejudice the jury against [the plaintiff].” Id. In the context of the entire trial, the court determined that the trial court abused its discretion in denying the plaintiffs new trial motion, and the court remanded the case for a new trial. Id.
Here, John Morrell contends that the four female employees’ testimony impassioned and prejudiced the jury against the defendant. The court is hard-pressed to find how the Silbergleit decision is instructive in this case because the issue in Silbergleit was whether irrelevant and prejudicial information put before the jury through counsel’s questions in a deliberate attempt to villainize the plaintiff warranted a new trial. Here, the evidence to which John Morrell objects was relevant and was not a tactical decision made by the plaintiffs lawyer to make an end-run around any of the court’s rulings, as was the situation in Silbergleit. John Morrell acknowledges that the testimony of Windle, Canady, Nilson, and Risley was presented in an *1179 attempt to prove an atmosphere of harassment in the plant but denies that an atmosphere of harassment is relevant.
As explained about in the court’s consideration of the defendant’s judgment as a matter of law, the plant-wide atmosphere at John Morrell was relevant to Baker’s hostile work environment claim.
See, e.g., Estes,
In order to be admissible, evidence must be relevant. Fed. R. Evid. 402. Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Fed. R. Evid. 401. Here, the four witnesses’ testimony was relevant because it tended to prove John Morrell’s knowledge and notice of harassment, its intent to discriminate, whether it maintained a sexually hostile workplace, and to show Baker’s assessment of John Morrell’s response to her complaints and background evidence of her hostile work environment claim.
See Madison,
Under Rule 403, even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The trial court has wide discretion in making this determination under Rule 403.
United States v. Ford,
3. Specific allegations of harassment injury instructions
On the morning of Monday, September 30, 2002, the court held an instruction conference in order to allow the parties to lodge any objections they might have to the court’s proposed final instructions. John Morrell had copies of the Proposed Final Instructions as early as September 18, 2002, which was five days prior to the start of trial. The court ordered the parties to file any objections to the proposed instructions by September 20, 2002. With respect to Proposed Final Instruction No. 3, the defendant requested additional language and did not suggest that the allegations be omitted. Subject to the change that resulted from the presentation of evidence at trial, the unobjected-to Proposed Final Instruction No. 3 was identical to Final Instruction No. 3.
During trial, the court held another instruction conference. Despite the fact John Morrell objected to several portions of Final Instruction No. 3, it did not object to the inclusion of Baker’s specific allegations — it quibbled only about the wording of the instruction. 14 In spite of its failure to object, John Morrell now moves for a new trial on the ground that inclusion of Baker’s allegations in Final Instruction No. 3 was unfairly prejudicial and gave an “air of truth” to the allegations.
Rule 51 of the Federal Rules of Civil Procedure “ ‘does not require formality, and it is not important in what form an objection is made or even that a formal objection is made at all, as long as it is clear that the trial judge understood the party’s position; the purpose of the rule is to inform the tidal judge of possible errors so that he [or she] may have an opportunity to correct them.’ ”
Brown v. Sandals Resorts Internat’l,
*1181
Rule 51 requires that litigants raise any objections to jury instructions in a timely manner in order to “afford the trial court an opportunity to cure a defective instruction and to prevent litigants from ensuring a new trial in the event of an adverse verdict by covertly relying on the error.”
Doyne v. Union Electric Co.,
John Morrell’s contention borders on frivolous and does not warrant a new trial. The allegations were clearly framed as allegations and were not improper.
See Caviness,
4. Admission of rumor evidence
In its first motion in limine, John Morrell moved to exclude evidence that Murphy spread a rumor regarding a sexual relationship between himself and Baker. Plaintiffs counsel proffered two theories on which to admit the evidence. First, he stated that the plaintiff intended to call Carl Cohen, a John Morrell employee. Cohen was going to testify that he heard the rumor from Murphy. However, Baker did not call Cohen to testify. Had he been called, the rumor evidence would not have been subject to the rule against hearsay because it was not offered to prove that Murphy and Baker indeed had a relationship but rather to show the source of the rumor. Second, the plaintiff contends that the rumor evidence was properly admitted because Baker confronted Murphy about the allegations and, instead of denying them, Murphy simply laughed. The plaintiff asserts that his laughter amounts to an adoptive admission, pursuant to Federal Rule of Evidence 801(d)(2)(B).
While Baker testified that she heard a rumor about her and Murphy, her belief that Murphy spread the rumor came in at trial through
John Morrell’s direct examination of Murphy.
[Tr. at 1056-59]. John Morrell, not Baker, elicited the hearsay portion of the out-of-court statement. Furthermore, counsel for John Morrell withdrew his objection to inclusion of this allegation in Final Instruction No. 3 because there was sufficient evidence in the record to support Baker’s allegation that Murphy conveyed a rumor about her. [Tr.
*1182
at 1124-25]. Although it is the court’s opinion that John Morrell waived any objection it otherwise may have had to admission of this statement, any error in its admission was harmless in light of the abundant evidence of harassment presented at trial. Therefore, a new trial is not warranted because John Morrell has failed to carry its burden of showing that any erroneous admission of this rumor evidence substantially prejudiced its right to a fair trial.
Harrison,
5. Admission of Dr. Jennings’s testimony
As its fourth ground for a new trial, John Morrell contends that the court erred in admitting the testimony of Baker’s treating physician, Dr. Jennings, as to the substance and causation of her emotional distress. John Morrell argues that Dr. Jennings’s testimony was unreliable and inadmissible under Federal Rule of Evidence 702.
Expert testimony must be reliable and help the jury understand the evidence or decide a fact in issue. Fed. R. Evid. 702;
Miles v. General Motors Corp.,
“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in crossexamination. Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Tech., Inc.,259 F.3d 924 , 929-30 (8th Cir.2001) (quoting Hose v. Chicago Northwestern Transp. Co.,70 F.3d 968 , 974 (8th Cir.1995) (internal citations and quotations omitted)).
Hartley v. Dillard’s, Inc.,
Here, Dr. Jennings’s testimony was not so lacking in foundation or reliability that it should have been excluded. Dr.
*1183
Jennings was Baker’s treating physician, and he diagnosed her with depression and referred her to a psychiatrist, Dr. Muller. Dr. Muller confirmed Dr. Jennings’s diagnosis. Dr. Jennings was competent to render an opinion formed during his treatment of Baker as to the causation of her depression. The sufficiency of the factual basis of Dr. Jennings’s testimony was open to any challenge John Morrell desired to mount on cross-examination, but that sufficiency was not a basis for excluding Dr. Jennings’s testimony altogether.
See United States v. Dico, Inc.,
6. Statements made during plaintiff’s closing argument
John Morrell’s final argument on this motion for new trial is that certain statements made by plaintiffs counsel during his closing argument were extremely prejudicial. Namely, plaintiffs counsel referenced the harassment that Baker endured as “terrorist acts,” which John Morrell contends were likely to insight anger, hostility, and bias against the defendant in light of the tragic events of September 11, 2001.
15
“To constitute reversible error, statements made in closing argument must be plainly unwarranted and clearly injurious.”
Pearce v. Cornerstone Clinic for Women,
In light of the substantial evidence of sexual harassment presented at trial, John Morrell faces an uphill battle in attempting to show prejudice because, on this record, the court is confident that a verdict in favor of the plaintiff was almost inevitable. Plaintiffs counsel’s remarks were, at minimum, imprudent, but it is highly unlikely that they affected the verdict. In
Stemmons v. Missouri Department of Corrections,
Here, counsel’s reference to Eichmann’s and Murphy’s conduct as “terrorist” acts must be viewed within the context of trial, the substantial evidence in support of the plaintiffs case, and counsel’s lengthy closing argument. “ ‘A new trial should be granted where the improper conduct of counsel in closing argument causes prejudice to the opposing party and unfairly influences a jury’s verdict.’ ”
Campos v. City of Blue Springs, Mo.,
C. Plaintiff’s Motion to Amend Complaint
Before turning to the parties’ respective motions to amend judgment, the court will first consider Baker’s Motion to Amend Complaint because disposition of this motion potentially impacts the remaining post-trial motions in this case.
In her Motion to Amend Complaint, brought pursuant to Federal Rule of Civil Procedure 15(b), Eaker seeks to add sexual harassment and retaliation claims under state law to conform to the evidence presented at trial. Specifically, she moves to amend her complaint to add discrimination *1185 claims under the Iowa Civil Rights Act (“ICRA”), Iowa Code ch. 216. The complaint originally filed with this court pleads only causes of action under Title VII. However, her original complaint. states that she filed a charge of discrimination with the Iowa Civil Rights Commission (“ICRC”), that she received a right-to-sue letter from the ICRC, which was attached to her complaint, and that filing her charge with the ICRC was part of the basis of her retaliation claim.
The import of the amendment is clear — without any state-law claims to argue that her emotional distress damages award should be allocated to, Baker cannot escape the Title VII damages cap. See 42 U.S.C. § 1981a(b)(3). She argues that the court should grant her leave to amend because John Morrell was on notice of the state-law claims and because John Morrell would not be prejudiced in its defense of the claims because the standards of liability under the state-law claims mirror the federal standards. For obvious reasons, John Morrell resists the plaintiffs motion. It argues that the court should deny Baker’s motion to amend her complaint because John Morrell did not have actual notice of her intent to inject state-law claims into her lawsuit. Moreover, John Morrell argues that the court should not grant leave to amend because of Baker’s undue delay and neglect in moving to amend.
The liberal principles governing amendment under Rule 15 are well-established and easily stated. Once a responsive pleading has been served, “a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). Rule 15(b) provides in part that,
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings ... may be made upon motion of any party, at any time, even after judgment....
Fed. R. Civ. P. 15(b). The purpose of the rule “is to bring the pleadings in line with the actual issues upon which the case was tried.”
Dependahl v. Falstaff Brewing Corp.,
Although it always is preferable to move under Rule 15(a) to amend the pleadings before trial, there are instances in which the need to do so does not become apparent until so close to trial, or after the trial has actually commenced, that the request for a change can be made only when the trial is under way. Moreover, on occasion the course of the trial departs so materially from the image of the controversy pictured in the pleadings or by the discovery process that it becomes necessary to adjust the pleadings to reflect the case as it actually was litigated in the courtroom. Rule 15(b) is designed to serve that purpose.
Subdivision (b) describes two procedures for what commonly are referred to as amendments to conform to the evidence. Technically, only the first of these really fits that description. It is set forth in the first sentence of Rule 15(b), which provides that when an issue not embraced by the pleadings is tried with the express or implied consent of the parties, it is to be treated in all respects as if it had been raised by the pleadings. The second procedure described in Rule 15(b) authorizes the court to permit the pleadings to be amended when evidence is objected to at trial as not being within the framework *1186 of the pleadings. The rule provides that in this situation permission to amend must be freely given by the court if it appears that the presentation of the merits of the action will be subserved thereby and the opposing party will not be prejudiced in the maintenance of his action or defense.
Even though the two procedures described in Rule 15(b) are quite different in their operation and application, both are designed “to avoid the tyranny of formalism” that was a prominent characteristic of former practice and to avoid the necessity of a new trial, which often followed a deviation from the pleadings. As pointed out in an earlier section, at common law and to a lesser degree under the codes, the pleadings completely controlled the subsequent phases of the litigation. Evidence offered at trial that was at variance with allegations in the pleadings generally could not be admitted, or even if admitted would not be allowed to provide the basis for the final disposition of the action. Federal Rule 15(b) is designed to eliminate the harshness of this earlier practice. The two procedures provided for in the rule are intended to promote the objective of deciding cases on their merits rather than in terms of the relative pleading skills of counsel or on the basis of a statement of the claim or defense that was made at a preliminary point in the action and later proves to be erroneous. Consequently, courts should interpret subdivision (b) liberally and permit an amendment whenever doing so will effectuate the underlying purpose of the rule.
An amendment will be allowed only if the parties have received actual notice of an unpleaded issue and have been given an adequate opportunity to cure any surprise that might result from the change in the pleadings. Before a newly raised issue can become part of the action, it must be tried with the consent of the parties, or if the evidence is challenged, the objecting party must be given an opportunity to demonstrate that the introduction of the evidence at trial is so prejudicial that the detrimental effect cannot be cured by a continuance or the imposition of some other condition on allowing the amendment....
It is now generally accepted that there may be no subsequent challenge of issues actually litigated, if there has been actual notice and adequate opportunity to cure surprise. If it is clear that the parties understand exactly what the issues are when the proceedings are had, they cannot thereafter claim surprise or lack of due process because of alleged deficiencies in the language of particular pleadings. Actuality of notice there must be, but the actuality, not the technicality, must govern.
ChaRles Alan Wright, Et Al., 6A FedeRAl PRACTICE & Prooedure Civil 2d § 1491 (1990) (footnotes omitted).
The decision to allow or disallow an amendment is a discretionary matter for the district court to resolve.
E.g., Corsica Livestock Sales, Inc. v. Sumitomo Bank of Cal.,
It appears to the court that the plaintiffs Rule 15(b) motion is a square peg that does not fit into the round holes contemplated by the rulemakers. As noted *1187 above, the rule is designed to avoid the necessity of a new trial when the need to amend the pleadings does not become apparent until trial has commenced. WRIGHT, ET AL., supra, at § 1491. In this case, nothing arose during trial that would have alerted the plaintiff of the need to amend her complaint to plead state-law claims. Instead, it is obvious that the substantial verdict and the damages cap prompted the plaintiffs motion, and the court doubts that Rule 15(b) was designed to address this type of situation. Nevertheless, the court assumes without deciding that Rule 15(b) authorizes the court to grant the plaintiffs motion in this case if otherwise appropriate.
Here, there is no question that the parties did not expressly consent to try Baker’s state-law claims. Therefore, disposition of this motion depends, in part, upon whether the parties impliedly consented. In
Gallon v. Lloyd-Thomas Co.,
“The purpose of an amendment to conform to proof is to bring the pleadings in line with the actual issues upon which the case was tried; therefore, an amendment after judgment is not permissible which brings in some entirely extrinsic issue or changes the theory on which the ease was actually tried, even though there is evidence in the record introduced as relevant to some other issue which would support the amendment.”
Id. (quoting 3 Moore’s Federal Practice § 15.13, at 846^17) (citations omitted).
Given John Morrell’s record of contesting every issue in this case, it is difficult to believe that they impliedly consented to anything Baker may have raised at trial. Furthermore, in the Eighth Circuit, “ ‘it cannot be fairly said that [parties] implied[ly] consent to try an [unpleaded] issue [unless they] squarely recognize it as an issue in the trial.’ ”
Standard Title Ins. Co. v. Roberts,
The court agrees that John Morrell would not be prejudiced by amendment because liability standards in this case under Title VII and the ICRA would be identical. 16 However, prejudice is only one-half of the equation. In order to permit Baker to amend her complaint under Rule 15(b), the court must also conclude that John Morrell impliedly consented to try unpleaded state law claims. Baker contends that two brief references to the filing of a discrimination charge with the ICRC in her original complaint, coupled with the fact that part of the basis of her retaliation claim was the fact of that filing, put John Morrell sufficiently on notice of her intent to invoke state law and to try a case that could result in a verdict in excess of the Title VII damages cap. 17
*1188 The court disagrees. Even if the plaintiff pursued both state and federal law remedies at the administrative level, by filing a complaint under Title VII alone, John Morrell reasonably could have concluded that she made a choice to invoke federal law and to forego her state law claims when she ultimately filed suit. Baker’s actions before filing suit are alone insufficient to place John Morrell on notice of her intent at trial to inject state law claims into her lawsuit.
The parties center their attention on
Kim v. Nash Finch Co.,
The notice to the defendant in Nash Finch was substantial. First, several portions of the plaintiffs complaint specifically alleged — or incorporated by reference — violations of § 1981. Id. The court held that the allegations in Kim’s complaint alone were sufficient to put the defendant on notice of the plaintiffs claim that Nash Finch’s conduct violated both Title VII and § 1981. Id. at 1064. Second, the plaintiff moved several times to amend the pleadings — -in pre-trial proceedings, immediately before trial, and during trial. Id. Third, the district court found, but later reconsidered, that the case had been tried on the basis of both § 1981 and Title VII. Id.
The
Nash Finch
court held that the admission of certain evidence “ ‘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.’ ”
Id.
at 1063 (emphasis added) (quoting
McLaurin v. Prater,
Here, the court finds not only that John Morrell did not have notice of Baker’s intent to try her state-law claims, the court finds that the plaintiff herself did not intend to try them. There is not a scintilla of evidence on this record that Baker intended to assert any discrimination claims under the ICRA. Instead, after the jury returned a large verdict, she moved to amend in order to circumvent the Title VII damages cap. Indeed, plaintiffs counsel in his closing argument confined his case to Title VII and stated,
I was trying to remember when it was that the 1964 Civil Rights Act was passed because that’s what you’re here enforcing.... It was Buzz Aldrin and Neil Armstrong walked on the moon in ’69. The Vietnam War was just starting to reach its — just starting to reach its peak in ’64. We were just going through some of the worst of Vietnam, and it was building up to get worse. That’s how long ago — I don’t know where you were in ’64 if you can remember. But back in ’64 is when this legislation was passed.
And we are here today dealing with the residual group — part of our society that has not conformed to that law yet and refuses to conform to that law. They have had twenty' — what is that?-— 28 years, 27 years now to conform to this law and have not done it yet....
[Tr. at 1552-53],
Moreover, the plaintiffs trial brief (Doc. No. 80) states that her causes of action are brought under Title VII, 42 U.S.C. § 2000e et seq. Also, the plaintiff identified her issues for trial in the final pre-trial order (Doc. No. 86) as “Whether Plaintiff suffered sexual harassment actionable under Title VII of the Civil Rights Act of 1964,” and “Whether Plaintiff suffered retaliation actionable under Title VII.” In addition, this court, in its ruling on the defendant’s motion for summary judgment, noted that Baker had only raised claims under Title VII. 18 Plaintiff *1190 had ample opportunity to amend her complaint.
Had the plaintiff intended to assert state-law claims and had only inadvertently neglected to plead them, it is reasonable to conclude that she would have moved to amend her complaint prior to trial. She did not. Furthermore, she had ample opportunity to amend, or at least to voice her intent to try her case under the ICRA as well as under Title VII. For example, prior to the commencement of trial, counsel met with the court to discuss any unresolved issues, and the plaintiff did not mention the ICRA at that time. Moreover, the court held multiple jury instruction conferences, both on and off the record, and at no time did the plaintiff seek to clarify that she intended to bring her claims under the ICRA and Title VII.
Instead, it was only after the jury returned a verdict well in excess of the Title VII statutory damages cap that the issue of parallel state-law claims arose when the plaintiff moved to amend. The court concludes that she did not intend to try state-law claims. Therefore, there could not be any proof to conform to within the meaning of Rule 15(b) because the plaintiff did not intend to inject any unpleaded claims at trial.
Because the court finds that John Mor-rell was not on notice of Baker’s attempt to try a case that could result in a verdict in excess of the damages cap and because the court finds that Baker did not intend to try any such claims until the jury returned a 1.52 million dollar verdict in her favor, the court denies the plaintiffs motion to amend complaint. 19
D. Defendant’s Motion to Amend the Judgment
As part of the plethora of post-trial motions in this case, John Morrell moved to amend the judgment. It argues (1) that the statutory damages cap applies; (2) the jury’s award for compensatory damages is excessive and not supported by the evidence; and (3) that punitive damages were not recoverable because they were unsupported by the evidence. The jury awarded Baker a total of $1.52 million in damages, allocated as follows:
• On her sexual harassment claim $250,000.00 for past emotional distress and $50,000.00 for future emotional distress;
• On her retaliation claim, $75,000.00 for past emotional distress and $10,000.00 for future emotional distress;
• On her constructive discharge claim, $150,000.00 for past emotional distress and $200,000.00 for future emotional distress;
• For the medical expenses on her sexual harassment claim, $14,470.24 for past medical expenses and $90,000.00 for future medical expenses;
• In backpay, $33,314.73;
• For punitive damages on her sexual harassment claim, $600,000.00; and
• For punitive damages on her retaliation claim, $50,000.00.
*1191 1. Application of the statutory damages cap
After finding that additional federal remedies were needed to deter unlawful harassment and discrimination, Congress amended 42 U.S.C. § 1981 in 1991 “to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace.” Civil Rights Act of 1991, Pub.L. No. 102-166, § 3. Prior to passage of the Civil Rights Act of 1991, a prevailing Title VII plaintiff was entitled to the relief enumerated in section 706(g) of the Equal Employment Opportunity Act of 1972. A court could enjoin the employer from engaging in illegal discrimination and order affirmative relief, “which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e — 5(g)(1). It is widely recognized that Congress enacted the 1991 Civil Rights Act, in part, because the damages available to successful civil rights plaintiffs were an insufficient deterrent to employers and did not function as an adequate compensatory mechanism. The statutory damages cap provision, 42 U.S.C. § 1981a(b)(3), represents a compromise, which one commentator has explained as follows:
As a practical matter, financial awards under Title VII were almost exclusively in the form of front pay and back pay. These actual damages might be rather small and could be further limited by the plaintiffs duty to mitigate her damages. This meant that plaintiffs often had little or no financial incentive to pursue their claims (assuming they could find attorneys willing to represent them). For victims of sexual harassment, a form of discrimination, there was even less reason, at least monetarily, to bring suit. A victim who could prove she was subject to a hostile working environment, but who had suffered no corresponding financial loss such as termination or demotion, was entitled to no damages award at all. As Representative Hawkins noted during the debate on the 1991 Act, “There is little incentive for a plaintiff to bring a [T]itle VII suit when the best that she can hope for is an order to her supervisor and to her employer to treat her with the dignity she deserves and the costs of bringing her suit.”
The bill that passed Congress in November 1991 was a compromise. Representative Hughes told his colleagues that the bill was “not a perfect bill by any means, but its flaws are significantly outweighed by its virtues.” One of the flaws of the bill, in Representative Hughes’s opinion, was the cap it set on compensatory and punitive damages. Some legislators were dismayed by the bill’s expansion of tort remedies for employment discrimination, especially because the new remedies were accompanied by the right to a jury trial, previously unavailable in such cases. The compromise was to allow compensatory and punitive damages when the plaintiff was able to prove intentional discrimination, but to limit those damages according to the employer’s size.
Rhonda Wilcox, Comment, Doing an End Run Around Damage Caps: Pollard v. E.I. DuPont deNemours and Unlimited Front Pay, 53 MeRcer L. Rev. 867, 868-70 (2002) (footnotes omitted).
Pertinent to Baker’s case, “the sum of the amount of compensatory damages awarded under [Title VII] for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed... $300,000.” 42 U.S.C. § 1981a(b)(3)(D). Thus, congressional *1192 mandate requires the court to remit Baker’s compensatory and punitive damages award to $300,000. This amount is exclusive of backpay and attorney’s fees. See 42 U.S.C. § 1981a.
2. Sufficiency of the evidence to support compensatory damayes award
The Eighth Circuit Court of Appeals has held that any award for emotional distress must be supported by competent evidence of a “genuine injury.”
Forshee v. Waterloo Indus., Inc.,
John Morrell argues that the jury’s award for Baker’s emotional distress is not supported by specific facts establishing a genuine injury, nor, according to the defendant, can she show a causal connection between her actual harm and the harassment. 20 The court strongly disagrees. In order to reach its conclusion that Baker cannot show a genuine issue, John Morrell again urges the court to disregard evidence that favors the plaintiff. Baker presented extensive evidence of genuine injury caused by the harassment not only through her own testimony, but through the testimony of her treating physician, her psychologist, her brother, and friends and coworkers. She testified, and her doctors corroborated, that she suffered from post-traumatic stress syndrome and severe depression caused by the harassment she suffered at John Morrell. Her brother and her friends testified that she was a “different person” than she used to be; while she used to be outgoing, she became withdrawn and isolated. She suffered from a mental breakdown, anxiety attacks, and even attempted suicide. Because of her mental condition, she was prescribed medication, lost weight, and had difficulty sleeping. John Morrell thoroughly cross-examined Baker’s physicians and Baker with respect to the causation of these damages, but the jury evidently chose to place credence in the plaintiffs *1193 evidence, which established that her condition was a result of the discrimination.
Baker was subjected to egregious, un-remedied harassment. She produced an abundance of evidence that she was subjected to a pervasively hostile work environment at John Morrell and was discriminated against because of her sex. She also showed that she was retaliated against for complaining to management and for filing an administrative complaint. As a result of these illegal acts, she was constructively discharged and suffered emotional distress. This is not the type of case where the plaintiff suffered from “vague and ill-defined” emotional and social problems.
See Delph,
After thoroughly reviewing the lengthy record, the court finds that the jury’s award of $735,000 in emotional distress damages was not grossly excessive. However, in light of the statutory damages cap, the court must remit the award to $300,000 for Baker’s emotional distress damages. This award, in light of prior cases and Baker’s evidence, surely is not grossly excessive given the years of severe and pervasive, unremedied harassment, discrimination, and retaliation that Baker endured. 21 Therefore, the court grants in *1194 part and denies in part John Morrell’s motion to amend the judgment.
3. Summary of damages
Although the court concludes that the jury’s damage awards were supported by the evidence, it must nonetheless reduce the judgment entered in plaintiff’s favor to comply with the statutory cap on damages, 42 U.S.C. § 1981(b)(3)(D). Accordingly, the court remits the compensatory damages award to $300,000, which the court also finds is supported by the evidence and is not clearly excessive.
Moreover, the defendant did not challenge the plaintiffs award of $33,314.73 in backpay. Backpay does not fall within the statutory damage cap; therefore, the plaintiff is entitled to its recovery even though it results in an award in excess of the cap. See 42 U.S.C. § 1981a(b)(2) (excluding backpay and “any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-5(g) ]” from application of the damages cap provision). Accordingly, the damages the plaintiff shall recover on her Title VII sex discrimination case amount to $333,314.73, plus post-judgment interest as provided by federal law, 28 U.S.C. § 1961.
III. CONCLUSION
The court has thoroughly considered the evidence presented at trial, as well as each of the arguments made by the parties. After applying the pertinent standards, the court finds as follows: the plaintiff presented sufficient evidence to support her sexual harassment, retaliation, and constructive discharge claims; none of the evidentiary rulings the defendant challenges was erroneous, nor was any so prejudicial that a new trial would likely produce a different result; the plaintiffs treating physician’s testimony was admissible as expert testimony; plaintiff s counsel’s reference to terrorism in his closing arguments was arguably imprudent but was not plainly injurious or prejudicial; the defendant waived its objection to the jury instructions, which, in any event, were proper. Therefore, the court denies the defendant’s Motion for Judgment as a Matter of Law and Motion for New Trial.
However, the court finds that plaintiff did not intend to bring her lawsuit under the Iowa Civil Rights Act and, therefore, the defendant could not have been on notice of any intent to try a lawsuit that could result in a verdict in excess of the Title VII damages cap. Accordingly, the court denies the plaintiffs Motion to Amend Complaint, even though the defendant would not be prejudiced in its defense of Baker’s claims against it.
Because the damages cap applies, the court must remit the plaintiffs damages to $300,000, exclusive of backpay. The court finds that this figure is appropriate and supported by the plaintiffs evidence of the emotional distress she suffered because of the defendant’s intentional discrimination *1195 in this case. Moreover, the defendant did not challenge the plaintiffs award of back-pay, and the jury’s award of $83,314.73 will stand. Therefore, the plaintiff shall recover $333,314.73, plus post-judgment interest as provided by federal law. Accordingly, the defendant’s Motion to Amend Judgment is granted in part and denied in part.
Finally, the time for appeal of this order is stayed, pending disposition of the plaintiffs Motion to Alter or Amend Judgment, which she seeks an award of front pay, (Doc. No. 118), and Motion for Attorney’s Fees, Costs, and Expenses (Doc. No. 122). Pursuant to Federal Rule of Civil Procedure 58(c)(2) and Federal Rule of Appellate Procedure 4(A), judgment shall not enter and the time for appeal shall not begin to run until the court files the supplemental order disposing of these remaining post-trial motions.
IT IS SO ORDERED.
Notes
.
Davis v. Town of Lake Park, Fla.,
. The plaintiff also filed a Motion to Amend Judgment in which she seeks an award of front pay, as well as a Motion for Attorney's Fees, Expenses, and Costs. Because of an inadequate record, the court will dispose of these motions separately, pending an eviden-tiary hearing.
. The sum of Baker's jury award totals $1,522,784.97.
. The First Circuit Court of Appeals aptly described the import of harassment that is not explicitly sexual in sexually hostile work environment cases.
Marrero v. Goya of Puerto Rico, Inc.,
. John Morrell did not contend in its moving papers that it did not have knowledge of the harassment. Instead, John Morrell solely focused on the adequacy of its remedial actions. The court notes, however, that the evidence compels the conclusion that John Morrell was aware of the harassment Baker was experiencing, based on Baker's numerous complaints to Joyce and as evidenced by Joyce's personal notes of some of those complaints.
. Section 2000e-3(a) provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, 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).
. John Morrell also dedicates a significant portion of its brief to two arguments that have no bearing on this case. First, it argues that it would have discharged Baker in 1999 for abandoning her post without permission despite her opposition to harassment. The court agrees that, had this claim been submitted to the jury, it would have failed because John Morrell would have been able to prove its "same decision” defense as to this discharge. However, this claim was not submitted to the jury, and, therefore, it is irrelevant to Baker's retaliation claim because she did not allege that her 1999 discharge was retaliatory.
Second, John Morrell also argued in its post-trial brief that it could not be held liable for Eichmann's and Murphy's continued harassment of Baker because John Morrell did not “cause” their behavior. Again, Baker did not argue that the continuing harassment was retaliatory but rather that John Morrell failed to remedy the continued harassment in retaliation for her opposition to harassment. Hence, John Morrell's argument that it did not "cause” Eichmann’s and Murphy’s continued harassment is likewise irrelevant.
. John Morrell notably did not argue that, even if the court found that Brown-Rowley denied Baker bathroom breaks, Baker still failed to prove a causal connection.
. John Morrell did not frame its argument in such a manner that would alert the court to any contention that its purported prompt and appropriate remedial response isolated John Morrell from liability on Baker's retaliation claim. The Eighth Circuit has not answered the question of whether such action prevents
*1170
employer liability for a retaliation claim.
Coffman,
. A finding that Baker was constructively discharged is not necessary for Baker’s retaliation claim because she presented evidence, which the jury believed, that she was subjected to other retaliatory adverse employment actions, as discussed in section II.A.3, supra.
. Interestingly, John Morrell argues that, based on its investigations of Baker's complaints, Baker and Eichmann similarly merely have a "personality conflict.”
. Moreover, the testimony of Nilson and Riley was clearly relevant because they testified regarding confrontations with and harassment from Eichmann and regarding John Morrell’s response to their complaints. In addition, John Morrell itself recognized the relevancy of Windle’s and Canady’s testimony in its brief in support of its second motion in limine but argued that its probative value was outweighed by the risk of prejudice and confusion. (Doc. No. 89, at 2-3).
. Canady and Windle also filed lawsuits against John Morrell alleging both race and sex discrimination. In its ruling on the defendant’s second motion in limine, the court limited their testimony to sexual harassment allegations.
. In its brief in support of its motion for new trial, John Morrell states: "At trial, the Court, in Final Instruction No. 3, instructed the jury {over Defendant's objection) on Plaintiff’s claims of sexual harassment and included along therewith a restatement of the specific allegations of harassment in the Court’s instructions” [Deft.'s New Trial Br., at 4] (emphasis added). The court takes exception to John Morrell’s misleading statement of the substance of its objection. At no time did John Morrell object to the inclusion of Baker's allegations so long as the allegations were supported by the evidence. [Tr., at 11 IS— 1138; Doc. No. 100].
. Plaintiffs counsel made three comments that John Morrell argues warrant a new trial. Viewed within the contexts in which they were made, the comments are not as shocking as they may appear at first blush. The statements include:
I have tried to think of a good way of explaining the very problem with [the harassment] starting and stopping, and the problem with it starting and stopping is this: It’s terrorism. It's guerilla warfare. Jeff Eichmann is a smart guy, and he knew how to play the personnel department like a fiddle. He knew the penchant that John Morrell had for — if you could get one man saying one thing and another woman saying another, nothing would be done. As Kathi Brown said, it would be treated neutrally. They would do nothing about it.
[Tr. at 1635],
If you are in the position of that woman who is being harassed, who's being terrorized, who's being told that somebody’s going to kill your mother or making jokes about your friend who’s dead or joking about your dead dog and you make an accusation and you know that all that’s going to happen is that that person is going to make accusations back at you, eventually all that happens is you stop complaining. And when you stop complaining, they have won.... And so all those gaps you see where nothing is happening is Mr. Eichmann in his terrorist way kind of hanging out in the bushes waiting until it's safe again to come back out and harass these women, in this case Rita Baker. He is playing their system, and he’s playing it like a fiddle.
[Tr. at 1636].
Allowing terrorism tactics to go on constantly, never solving the problem, is not acting reasonably. They should have done something years ago to stop Mr. Eichmann from treating women like he treated Rita Baker.
[Tr. at 1647],
. The court recognizes that prejudice could result from a defendant's failure to settle at an amount above the damages cap if the defendant feared a large verdict under parallel state-law claims. However, the defense has not argued this type of prejudice here.
. Prior to trial, the defendant erroneously believed that the Title VII damages cap did
*1188
not apply to punitive damages. [Motions
in Limine
Tr. at 13]. However, this misconception was not based on any belief John Morrell held regarding whether Baker had brought a state-law claim. Indeed, the ICRA does not provide for the recovery of punitive damages at all.
E.g., Chauffeurs, Teamsters & Helpers, Local Union No. 238 v. Iowa Civil Rights Comm’n,
Moreover, misreading of the statute aside, the transcript on the defendant’s motions
in limine
(Doc. No. 147) reveals that the defendant was cognizant of the damages cap and believed that Baker’s damages were subject to it. Curiously, the plaintiff relied on
Madison
v.
IBP, Inc.,
. A major issue in the motion for summary judgment in this case was the limitations period on Baker's disparate treatment claim and whether Baker could offer evidence of disparate treatment predating the limitations period. Under Title VII, to be deemed timely, an EEOC charge must be filed "within three hundred days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e — 5(e)(1);
Kimzey,
The Iowa Civil Rights Act, however, does not impose such a limited recovery period on sexual harassment claims.
See Channon v. United Parcel Service, Inc.,
(Iowa 2001). An ICRA sexual harassment claimant must file suit within 180 days of the alleged discriminatory act, Iowa Code § 216.15(12), but the plaintiff is entitled to an award of damages for the entire period that the plaintiff's rights were violated.
Madison,
The plaintiff never raised this argument on summary judgment. Instead, Baker sought to admit evidence of events predating the Title VII limitations period not as a basis for an award of damages but as relevant evidence to aid the trier of fact in determining whether or not the acts within the 300-day period were discriminatory.
While the court recognizes that the evidence was introduced on Baker's disparate treatment claim, it would also have been rele *1190 vant to her hostile work environment claim. The court is at a loss to find a principled reason why the plaintiff would not have raised this critical distinction between federal and state law regarding recoverable time periods had the plaintiff intended to bring a claim under the ICRA.
. Under these circumstances in which the court finds that the plaintiff moved to amend in order to avoid the Title VII damages cap but did not intend to bring the state-law claims until the large verdict was returned, the court opines that Rule 15(b) does not impart the court with authority to grant the plaintiff’s amendment. However, because the standards for liability in this case are identical under the ICRA and Title VII and, therefore, amendment would not result in any prejudice to the defendant, the court would grant the plaintiff's motion if the court had discretion to do so.
. For the first time in its reply brief, John Morrell attacks separately the amounts of past and future emotional distress. However, a party cannot properly assert a new argument in a reply brief. N.D.IA.L.R. 7.1(g). Nothing in Baker's resistance would have prompted such an argument in reply. Therefore, the court will not distinguish between amounts awarded for past and future emotional distress but will, like the parties' properly-raised arguments, consider past and future emotional distress damages only in the aggregate.
. “Punitive damages are allowed under Title VII if the defendant discriminated 'with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’ ”
Beard v. Flying J, Inc.,
The court is confident that John Morrell’s conduct supports the jury’s conclusion that an award of punitive damages of at least $300,-000 — the statutory cap — is warranted, based on much of the same reasoning employed with respect to Baker’s constructive discharge claim and John Morrell’s indifference to her complaints. However, because Baker's emotional distress damages alone reach the statutory damages cap, the court will not address the punitive damages award further.