During her employ as a special investigator with the Quality Control Unit of the Kansas Department of Human Resources, plaintiff Caryn MeCue was allegedly sexually harassed by her immediate supervisor, defendant Joseph Ybarra. After three years of *787 alleged harassment, she filed an internal complaint, and nearly three years later she was discharged. She filed the instant suit approximately two years after her termination. She brought actions against the State of Kansas, the Department of Human Resources (“Department”), and various Department employees, alleging sexual harassment, retaliation, defamation, and negligent infliction of emotional distress. The district court granted defendants’ motions for summary judgment on several claims, retaining jurisdiction only over the Title VII retaliation action against the Department. At trial, a jury found for Ms. McCue on the retaliation claim and returned a verdict, part advisory and part binding, of $300,000 ($50,000 emotional distress; $75,000 back pay; $175,000 front pay). The district court entered judgment in accordance with the verdict, and subsequently granted Ms. McCue’s application for attorneys’ fees.
The Department appeals the district court’s jury instructions, failure to dismiss as a matter of law, admission of certain evidence, submission of the issue of front pay to the jury, and the award of attorneys’ fees. Ms. McCue cross-appeals the district court’s grants of summary judgment against her claims, and admission and exclusion of certain evidence. We affirm the district court’s challenged jury instructions, evidentiary rulings, and its ruling on the judgment as a matter of law; we reverse the court’s ruling on front pay; and we remand for further action. Pursuant to Ms. McCue’s motion for voluntary dismissal and Rule 42(b) of the Federal Rules of Appellate Procedure, we dismiss Ms. McCue’s cross-appeals.
BACKGROUND
Caryn McCue, the plaintiff, is a former employee of the Kansas Department of Human Resources. Ms. McCue alleges that from 1986 to October, 1990, her supervisor, defendant Joseph Ybarra, harassed her by soliciting her for sex, making lewd comments about her, and threatening her job security should she ever complain of his behavior.
On October 4, 1990, Ms. McCue filed an internal discrimination complaint. The Department subsequently had defendant Bill Medlock intervene to supervise Ms. McCue and to prevent future contact between Ms. McCue and Mr. Ybarra. Upon hearing of Ms. McCue’s internal complaint, Mr. Ybarra allegedly said he was going to fire Ms. McCue. One and one half months later, Ms. McCue received her first unsatisfactory evaluation in twelve years.
On February 2, 1991, Ms. McCue filed a charge of discrimination with the EEOC and with the Kansas Commission on Civil Rights. The charge alleged Mr. Ybarra had retaliated for her having filed an internal complaint; on April 10, 1991, Ms. McCue amended the charge to include an allegation of sexual harassment. On January 11, 1993, the EEOC issued Ms. McCue a “right to sue” letter indicating that she had ninety days in which to file her claim.
The Department discharged the plaintiff on August 19, 1993, allegedly for unsatisfactory work performance. Ms. McCue filed a second charge of discrimination with the EEOC on September 15,1993. She filed the instant suit on March 9,1995.
I. Challenge to Jury Instructions and to the Denial of Motion for Judgment as a Matter of Law
The State first challenges the district court’s instructions to the jury and the district court’s refusal to grant its motion for judgment as a matter of law. These challenges rest on the State’s assertion that, as a matter of law, the State cannot intend to act absent a statutory authorization to an authorized agent allowing such action be taken on behalf of the state. More simply, the State argues it can only have intent as outlined in statutes or pursuant to state policy. The State thus argues that because state policy forbids retaliation, the State cannot be liable.
We review the district court’s decision to give or not give a particular instruction for abuse of discretion,
Allen v. Minnstar, Inc.,
In denying the State’s motion for judgment as a matter of law, the district court found the State’s argument unsound in its suggestion that “intent [for purposes of a Title VII retaliation claim] must reside in the entity with final termination authority.”
McCue v. Kansas Dep’t of Human Resources,
No. CIV.A.95-2116-DES,
On appeal, the State has presented us some authority, but it is not pertinent to our inquiry. The cases cited by the State are section 1983 cases and a Title IX case.
See City of St. Louis v. Praprotnik,
Employer liability in section 1983 actions is restricted away from agency principles because section 1983 permits a lawsuit against a “person” in his individual capacity.
See
42 U.S.C. § 1983. Title IX does not even include an explicit private right of action, although the Supreme Court has implied a right of action to enforce the general guarantee provided for by Title IX.
See Gebser,
There is simply no basis to restrict liability in Title VII retaliation actions away from the law of agency. The plain language of the statute establishes that agency principles control liability, as do court decisions interpreting the statute and comparing it to other statutes. Finally, permitting such a loophole for avoiding liability would effectively destroy any Title VII retaliation actions. The district court erred neither in its instructions to the jury nor in its denial of the motion for judgment as a matter of law.
II. Evidentiary Errors
The State identifies three evidentiary errors and one error in failure to give a limiting instruction, the cumulative effect of which, it argues, impacted the verdict and mandates a new trial. We review a district court’s decision to admit or exclude evidence for abuse of discretion.
Cartier v. Jackson,
We hold the district court may have erred in admitting bad character evidence about Mr. Medlock, and erred in failing to offer a limiting instruction on the use of Exhibit 33. However, the potential error and error were each harmless, and the two errors are harmless when weighed cumulatively.
*789 A. Admission of Evidence of Sexual Harassment in Title VII Retaliation Action.
The district court dismissed Ms. McCue’s Title VII harassment claim as time-barred on the State’s motion for summary judgment. Ms. McCue’s Title VII retaliation claim was allowed to proceed. In the retaliation trial the district court denied State’s motion in limine to exclude evidence of alleged sexual harassment of Ms. McCue by her supervisor, Mr. Ybarra.
The State objects to the evidence on the grounds that it is irrelevant and highly prejudicial. We review the district court’s admission of evidence under Federal Rule of Evidence 403
1
for abuse of discretion.
See United States v. Wacker,
To establish a prima facie case of retaliation, the plaintiff must show (1) that she engaged in a protected activity, (2) that she was subjected to adverse employment action by her employer, and (3) that a causal connection exists between the protected activity and the adverse employment action.
See Murray v. City of Sapulpa,
However, a plaintiffs presentation of a prima facie case merely shifts the burden to the defendant to show that the adverse action was taken for a legitimate reason.
See Sorensen v. City of Aurora,
Ms. McCue alleged that her decreased productivity was the direct result of the ongoing sexual harassment, and thus the seemingly legitimate reason for termination was no more than a pretext. Of course, to make this allegation successfully, Ms. McCue needed to introduce evidence of the harassment. The jury would judge the credibility of her claim that her performance suffered as a result of the harassment based on its judgment as to the severity of the harassment. Only by introducing evidence of the harassment could Ms. McCue establish its severity in the manner required to satisfy her not insubstantial burden of establishing by a preponderance of the evidence that the proffered reason for her termination was mere pretext. This Circuit has allowed similar evidence for a similar purpose.
See Pitre v. Western Elec. Co. Inc.,
In affirming, however, we note our concern that this evidence is very prejudicial. The State points out that the sexual harassment was not at issue in the retaliation trial and thus was not compensable. However, it would be nearly impossible to separate the damages caused by harassment from those caused by retaliation. There is a very real danger that by permitting this evidence to be heard, the damages will reflect an injury not at issue in the trial. That said, the district court made a determination that the prejudice of the evidence did not substantially *790 outweigh its probative value. The court carefully outlined the reasons for admitting the evidence, and we cannot say that the district court’s weighing of prejudice against relevance was an abuse of discretion.
The State also objects to the district court’s omission of its proposed instruction number 9, stating in part “[retaliation is the sole basis on which you may award damages. You must not concern yourselves with ... sexual harassment.” Apnt’s Br. at 31. “Because [the State] did not object to the district court’s omitting the aiding and abetting instruction, we review only for plain error.”
United States v. Peach,
B. Admission of Character Evidence About Mr. Medlock.
The State also argues error in the admission of evidence alleging Mr. Medlock — the supervisor interposed between Ms. McCue and Mr. Ybarra after her initial complaint— assigned work in a sexually discriminatory manner two years after Ms. MeCue’s termination. The district court defended the admission in denying the motion for new trial on the ground that this evidence, like the evidence of Mr. Ybarra’s sexual harassment of Ms. McCue, served to show the pretextual nature of the proffered reason for McCue’s termination. We hold that even were the admission of the evidence error, it was harmless error.
It is difficult to imagine a legitimate ground for admitting the evidence. It cannot be admitted for impermissible use of showing action in conformity with other bad acts. Fed.R.Evid. 404(b) (“Evidence of other ... wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”). The evidence should not have been admitted — as the plaintiff argues on appeal that it was — “to show the disparate treatment by [the Department] of men compared to women.” See Aple’s Br. at 29. Ms. McCue would have the jury reason that because Mr. Medlock allegedly acted in a sexually discriminatory manner two years after Ms. McCue’s termination, he had the character of one who sexually discriminates. Thus, he might have discriminated when supervising Ms. McCue. This inference is precisely the sort proscribed by Rule 404(b); inferring character from an act, and then a different act from that character, is impermissible.
Federal Rule of Civil Procedure 61 admonishes that a new trial should not be granted for an error “unless refusal to take such action appears to the court inconsistent with substantial justice.” Fed. R. Civ. Pro. 61. In this case, a good deal of evidence had correctly been admitted to show sexual harassment in Ms. McCue’s workplace. For example, testimony had been admitted 2 suggesting that Mr. Ybarra asked Ms. McCue to let him take nude pictures of her, and had repeatedly, with the use of vulgar language, asked Ms. McCue to engage in various sexual activities with him, and threatened her job security. ApltApp. vol. Ill, at 912, 913, 914 (testimony of Ms. McCue). The district court noted that the sexual harassment evidence “lasted for a few minutes of a week long trial.” District Opinion at *4. The additional suggestion that two years after Ms. McCue’s termination her supervisor may have acted in a discriminatory manner is so relatively insignificant that it could not reasonably be expected to change the outcome of the trial. Admission of the evidence may have been error, but looking at the record as *791 a whole, it is not “inconsistent with substantial justice.”
C. Admission of the Letter, and Failure to Give Limiting Instruction.
The State next objects to the admission of a letter from plaintiffs counsel to the Secretary of the Department on the ground that the letter was hearsay. The district court reasoned the letter was not hearsay because it was not offered to prove the truth of anything asserted therein. See Fed. R.Evid. 801(c) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). The letter was offered “simply to counter the defense counsel’s characterization of the letter in her opening statement and to establish that defendant had notice of the fact and nature of Ms. McCue’s complaints.” District Opinion, at *4. Defense counsel had characterized the letter in opening statements as saying, “If you fire me, I’m going to sue you.” Aplt.App. vol. Ill, at 787. The letter was offered to rebut this characterization. When the plaintiff sought to introduce the first paragraph of the letter, the defense objected unless the jury could “see the whole” of the letter. Apnt.App. vol. Ill, at 955. The court admitted the entire letter over defense’s alternative hearsay objection.
The State moved for a limiting instruction to the jury that the letter should be used only to rebut the earlier characterization of the letter. The district court agreed to give a limiting instruction, see Aplt.App. vol. Ill, at 955, but then failed to do so. The State does not cite to the record as to whether it called the omission to the court’s attention before the jury retired. The district court, in the motion for a new trial, conceded the failure to offer the instruction was error, but refused to find that the omission “so substantially affected defendant’s rights as to merit a new trial.” District Opinion, at *4. We agree.
The letter introduces very little that is not duplicative of evidence properly admitted already. It merely suggests facts that are largely cumulative to the evidence otherwise offered at trial. As discussed in the previous section, enough testimony had legitimately been admitted that tended to show sexual harassment in the Department, that the con-clusory restatement of those allegations in letter form does not cause the trial to be substantially unjust. Fed. R Civ. Pro. 61. The one allegation made by the letter which is not duplicative of evidence already before the jury is that Mr. Ybarra “physically sexually abused and harassed Ms. McCue ... [by] touching.” Apnt.App. vol. YI at 1804. This seems to be the only allegation of physical harassment on the record. Again, however, we conclude that the erroneous inclusion of one unsupported sentence, amidst a week-long trial, is simply not sufficient ground to merit ordering a new tidal.
D. Cumulative Impact of Errors Not Sufficient to Order New Trial.
“A
cumulative-error analysis
merely
aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.”
United States v. Rivera,
III. Frontpay
The district court allowed the jury to determine the amount of front pay to be awarded Ms. McCue. The State submits that front pay is a form of equitable relief available under 42 U.S.C. § 2000e-5(g), to be awarded by the judge, not the jury. We agree with the State and therefore vacate the award of front pay and remand for the district court to determine the appropriate amount of front pay to be awarded.
Section 2000e-5(g) allows the court to award “equitable relief as [it] deems appropriate,” for Title VII violations. Such relief *792 explicitly includes back pay, although no mention is made of front pay. 42 U.S.C. § 1981a permits the award of punitive and compensatory damages as a matter of law for actions brought under Title VII. However, that same section expressly excludes from the allowed compensatory damages “back-pay, interest on backpay, or any other type of relief authorized under [42 U.S.C. § 2000e-5(g) ].” Section 1981a does allow compensatory damages for, among other things, “future pecuniary loss.”
Damages awarded under section 2000e-5(g) are equitable relief to be determined by the court, while damages awarded under section 1981a are legal damages that may be submitted to a jury. The District Court held that front pay is included in “future pecuniary loss,” and thus is a form of legal damages to be determined by the jury. The State contends this holding is in error, because front pay is an “other type of relief authorized under [section 2000e-5(g) ],” and thus expressly excluded from the available relief under section 1981a.
The District Court held that Congress knew how to expressly exclude back pay from the available relief under section 1981a, and could have similarly expressly excluded front pay if that were its intent. Furthermore, by including “future pecuniary loss” among the available relief, section 1981a’s plain language permits front pay. This analysis fails.
Although this issue has not been decided expressly, courts generally take it upon themselves to calculate front pay as an equitable remedy under section 2000e-5(g).
See, e.g., Kim v. Nash Finch Co.,
Relegating the duty of determining front pay relief to the trial judge is reasonable as well as mandated by the statute, as this case shows well. In the instant case, a substantial amount of evidence about sexual harassment was presented to the jury. As discussed above, this evidence was not improperly admitted, but sexual harassment was not itself at issue in the lawsuit, and the dangers inherent in its admission were not insubstantial. It is possible that the sexual harassment evidence improperly impacted the jury determination of front pay; the jury awarded $175,000 in front pay. “Because of the potential for windfall, ... [the award of front pay] must be tempered.”
Duke v. Uniroyal Inc.,
Concluding the district court to have erred in submitting the issue of front pay to the jury, we vacate the award of front pay and remand the issue for equitable determination by the district court.
IV. Attorneys’ Fees, Costs and Expenses
The State urges vacating the award for attorneys’ fees, costs, and expenses on the ground that Ms. McCue is not a prevailing party if the State prevails on appeal. We have vacated and remanded one issue from below: the calculation of front pay. This change does not alter Ms. McCue’s prevailing party status. Because we have not reversed on the merits, we need not reconsider the award of fees.
V. Cross-Appeal
Ms. McCue filed a cross-appeal but has since moved for voluntary dismissal in an agreement signed by both parties pursuant *793 to Rule 42 of the Federal Rules of Appellate Procedure. Because we grant the motion to dismiss, we need not consider the merits of the cross-appeal.
Conclusion
The district court did not err by not instructing the jury that state law effectively controlled liability for Title VII actions, nor did it err in refusing to dismiss as a matter of law. The alleged evidentiary errors were each either not errors or harmless, and the harmless errors considered cumulatively still did not merit a new trial.
Allowing the jury to determine front pay as a matter of damages was error. Front pay remains an equitable remedy available under section 2000e-5(g) and therefore expressly excluded from the damages available under section 1981a. We VACATE the award and REMAND for the district court to determine the equitable front pay award.
As Ms. McCue remains the prevailing party, attorneys’ fees were properly awarded.
Ms. McCue’s cross-appeal, pursuant to the motion for voluntary dismissal, is DISMISSED.
Notes
. “Although 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.” Fed. R.Evid. 403 (emphasis added).
. This evidence was admitted properly, as discussed in section II.A, supra, to show the pretex-tual nature of the Department's proffered reasons for discharging the plaintiff.