RYTHER v. KARE eleven NBC

C. Thomas RYTHER, Plaintiff-Appellee, v. KARE 11, an NBC Affiliate; Gannett Co., Inc., Defendants-Appellants.

Determined: May 31, 1996

KARE 11, a Twin Cities television station, refused to renew C. Thomas Ryther’s contract as lead sportscaster for a fifth three-year term. In 1991, when Ryther was terminated, he was fifty-three years old. Ryther sued KARE eleven and its parent, Gannett Co., Inc. (collectively “KARE 11”), alleging a disturbance of the Age Discrimination in Employment Act (“ADEA”), twenty nine U.S.C. §§ 621-634. Following a jury verdict in Ryther’s favor, the district court, the Honorable David S. Doty presiding, denied a maneuverability for a fresh trial and, alternatively, a mobility for judgment as a matter of law. The court entered judgment awarding Ryther $1,254,535 in back pay, front pay, liquidated damages, and attorneys’ fees. See Ryther v. KARE 11, eight hundred sixty four F.Supp. One thousand five hundred ten (D.Minn.1994). KARE eleven appeals. We affirm the judgment of the district court.

Ryther served as a sports anchor for Channel eleven from December one thousand nine hundred seventy nine until July 1991, pursuant to a series of four three-year contracts. Gannett/KARE eleven purchased the station in 1983, and in one thousand nine hundred eighty eight Janet Mason became KARE 11’s vice president of news. At that time, the sports department’s members included Jeffrey Passolt and Randy Shaver, both under age 40. Ryther then appeared on the six o’clock and ten o’clock news and hosted a weekly display, “Prep Sports Extra,” during the football season. Passolt did a sports feature on the five o’clock news and, along with Shaver, served as weekend sports anchor.

In the summer of 1988, Ryther was approximately fifty years of age. Ryther’s responsibilities began switching that year, shortly after Mason’s appointment to vice president. KARE eleven eliminated Ryther from Prep Sports Extra, which he then co-anchored with Shaver, and during 1989, the year in which Linda Rios Brook became station manager, Mason eliminated Ryther from the six o’clock news and assigned him to a recreational segment on the five o’clock news. Passolt substituted Ryther as sports anchor during the six o’clock time slot. In May 1990, Shaver was named executive producer of sports, a position to which Ryther was entitled under his contract. Shaver assumed many of Ryther’s organizational and planning duties.

On March 6, 1991, shortly after Ryther discovered he was being excluded from promotional photos, Ryther confronted Mason about the status of his contract. Mason told him his contract would not be renewed because he had failed in the market research. After several events detailed in the district court’s opinion, Ryther, eight hundred sixty four F.Supp. at 1515-16, Ryther left KARE eleven and filed this lawsuit.

The decision not to renew Ryther’s contract was made by Rios Brook, Richard Modig, Vice President of Broadcast Operations, and Mason. When Rios Brook was asked at trial what market research she “relied on” in making the decision about Ryther, she responded that it was the “Gallup” research, in reference to a survey conducted for KARE eleven in June one thousand nine hundred ninety by the Gallup Organization (“1990 Gallup Survey”). Tr. IV-136. Mason, similarly, said that she arrived at that decision after she got the one thousand nine hundred ninety Gallup Survey. Tr. V-194, V-197.

In earlier years, one thousand nine hundred eighty one and 1989, there had been other market research, performed by the Atkinson-Farris Communications research rock-hard (“Atkinson”), to determine KARE 11’s ratings. In 1981, the Atkinson research found that Ryther was “not impressive” and that his quality score was “extremely low.” In 1989, Atkinson again did a survey for KARE eleven and found sports “the softest part of your team.” Ryther had “virtually the same ratings” as he had in 1981.

In 1990, partially because KARE eleven found the Atkinson research incomplete, KARE eleven sought fresh market research by commissioning the one thousand nine hundred ninety Gallup Survey. The one thousand nine hundred ninety Gallup Survey reported that Ryther had seventy-six percent viewer recognition, whereas Mark Rosen, a sportscaster at competitor WCCO, had eighty-one percent recognition. Rosen was rated number one and Ryther number two in the overall Twin Cities’ market. The one thousand nine hundred ninety Gallup Survey reported that Ryther “underperform[ed]” and that he was not a strong player for KARE 11. One

KARE eleven urges that, upon receipt of the one thousand nine hundred ninety Gallup Survey, Mason, Rios Brook, and Richard Modig, KARE 11’s vice president of operations, made the decision not to renew Ryther’s contract in August 1990. The primary issue at trial, and also on this appeal, is whether the overall market research was the true reason for Ryther’s dismissal, or merely a excuse for age discrimination. Ryther asserts that he suggested evidence to display that this was not true, that in fact the decision was made prior to that time, and that the research was biased and merely a excuse for unlawful age discrimination.

The district court, in overruling KARE 11’s movement for judgment as a matter of law, cautiously summarized the evidence from which a jury could reasonably find that the alleged nondiscriminatory reason for refusing to rehire Ryther was false. In this regard, Judge Doty found that there was sufficient evidence for the jury reasonably to conclude that: the defendants made the decision not to renew Ryther’s contract before the one thousand nine hundred ninety Gallup Survey was undertaken; some of Ryther’s duties had been transferred to junior people and that his contract was not renewed despite positive spectacle evaluations from KARE 11; KARE eleven deceived Ryther by leading him to believe that his work was commendable, in order to prevent him from improving upon his alleged deficiencies; the one thousand nine hundred ninety Gallup Survey was purposely designed so that Ryther would not get a fair rating, thus masking the discriminatory reason for his termination; and KARE eleven provided a hostile work environment for Ryther because of his age. Ryther, eight hundred sixty four F.Supp. at 1515-18. Two

Our standard of review of this evidence is governed by lodged rule:

[W]e must consider the evidence in the light most favorable to [Ryther], assume all conflicts in the evidence were resolved by the jury in [Ryther’s] favor, and give [Ryther] the benefit of all favorable inferences that may reasonably be drawn from the proven facts. A judgment [as a matter of law] should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining [Ryther’s] position.

Frieze v. Boatmen’s Bank, nine hundred fifty F.2d 538, five hundred forty (8th Cir.1991) (internal citations and quotations omitted). Three

Stated another way, it is well lodged that we will not switch roles a jury’s verdict for insufficient evidence unless, after viewing the evidence in the light most favorable to the verdict, no reasonable juror could have returned a verdict for the non-moving party. Gardner v. Buerger, eighty two F.3d 248, two hundred fifty one (8th Cir. 1996).

The law governing the allocation of evidentiary burdens in age discrimination cases like this one is well established. See generally St. Mary’s Honor Ctr. v. Hicks, five hundred nine U.S. 502, five hundred ten & n. Four, one hundred thirteen S.Ct. 2742, two thousand seven hundred forty nine & n. Four, one hundred twenty five L.Ed.2d four hundred seven (1993); Texas Dep’t of Community Affairs v. Burdine, four hundred fifty U.S. 248, 252-56, one hundred one S.Ct. 1089, 1093-95, sixty seven L.Ed.2d two hundred seven (1981); McDonnell Douglas Corp. v. Green, four hundred eleven U.S. 792, 800-06, ninety three S.Ct. 1817, 1823-26, thirty six L.Ed.2d six hundred sixty eight (1973). Four

KARE eleven does not contend that Ryther failed to establish a prima facie case of age discrimination. There exists ample evidence that the jury could reasonably believe that (1) Ryther was within the protected age group (he was fifty-three years old); (Two) as manifested by his contract renewals and KARE 11’s own evaluations, he had been performing his job at a satisfactory level for over twelve years; (Trio) his contract in one thousand nine hundred ninety one was not renewed; five and (Four) KARE eleven substituted him with a junior person. (Jeff Passolt was only thirty-three years of age and did not have as high of a spectacle rating as Ryther.)

The dissent urges that, once KARE eleven articulated a non-discriminatory reason for its deeds, it was entitled to a judgment as a matter of law because it demolished plaintiff’s prima facie case. The articulation of a non-discriminatory reason by the employer ruins the legal presumption of plaintiff’s prima facie case, and plaintiff is therefore no longer entitled to a judgment as a matter of law. Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. However, as Hicks and Burdine make clear, if the employee can demonstrate that the reason given for the employer’s activity is pretextual, then the case moves to a fresh level of factual inquiry. Id. at 515, one hundred thirteen S.Ct. at two thousand seven hundred fifty two (citing Burdine, four hundred fifty U.S. at 255, one hundred one S.Ct. at 1094). Under these circumstances, assuming that there exists credible and substantial evidence of preposition, the plaintiff may still rely upon the elements of the prima facie case and the substantial evidence of pretextuality to urge to the trier of fact that the employer was guilty of intentional discrimination. Id. There is no synergistic formula to determine whether the elements of a prima facie case and preposition are sufficient to permit a jury to make a finding of intentional discrimination; we simply inquire whether there is substantial evidence which would permit a finder of fact to determine that the employer’s reasons were a subterfuge or mask to conceal age-based animus.

With this in mind, we again turn to the fundamental issue in this case: whether Ryther produced sufficient evidence to permit a jury reasonably to find that KARE eleven intentionally discriminated against him on the basis of his age. Albeit much of the evidence is circumstantial, we agree with the district court’s careful analysis that a reasonable jury could infer that KARE 11’s asserted reason for discharge was false, and that the evidence was sufficient to permit a jury to find that KARE eleven engaged in age discrimination. Six

A. The Market Research as a Entire

Ryther urges that the record is replete with evidence that his research ratings reflected not his abilities, but KARE 11’s failure to emphasize sports. The plenary evidence to this effect included the testimony of Ryther that, just days before his dismissal, Paul Baldwin, KARE 11’s assistant news director, told him, “[t]he research isn’t your fault,” and explained that Ryther’s demonstrating relative to WCCO’s Mark Rosen was the result of WCCO’s promotion of Rosen, its ownership of broadcast rights in several major sporting events, and its emphasis on sports generally. Other evidence showcased that Ryther continued to ask for better sports promotions, but was denied. In fact, Rios Brook admitted that “[sports] was not an area that I was worried about,” and Mason testified that “sports was relatively unimportant” in comparison to other parts of the newscast. Relatedly, Gallup Vice President Dr. Frank Newport admitted that Ryther’s showcasing might be due in part to KARE 11’s poor promotion of sports and noted that Rosen’s recognition was “unusual” for a sportscaster. Yet despite KARE 11’s own lack of sports promotion, Ryther remained the number two sportscaster in the market, 2nd only to Rosen, and above KARE 11’s own Jeff Passolt and Randy Shaver. Seven

There can be little doubt that, albeit it had before it the one thousand nine hundred eighty one and one thousand nine hundred eighty nine Atkinson research, the jury could reasonably reject KARE 11’s alleged reliance upon Ryther’s low market ratings on the ground that KARE eleven kept rewarding Ryther for his spectacle. In fact, KARE eleven negotiated and awarded Ryther with substantial salary increases in three different interim three-year contracts. These contract renewals could lightly justify a finding that, in this interim time period, Ryther’s spectacle was more than adequate to fulfill KARE 11’s programming interests. Eight

In May 1989, Lilyan Wilder, a training consultant to KARE 11, copied a letter to Janet Mason, written to Ryther after reviewing his spectacle in a training session. The letter read in part:

It was a pleasure to see you again and to work with you. Your authority, your sense of “sports” and the essence of it, are excellent. Your timing, your play-by-play and your good, strong voice are all positive.

Appellee’s App. at E2 (emphasis added). Likewise, as late as August 1, 1990, Barry Nash, a talent coach hired by KARE eleven in 1990, wrote about Ryther to Mason and Baldwin:

Hats off to Tom for the effort to create reports with more universal appeal. Innovations like the Three Musketeers footage he used to begin his chunk on fencing are certainly a step in the right direction.

Most significant, however, in the consideration of the conflicting evidence, notwithstanding the earlier Atkinson reports, is Mason’s individual review of Ryther’s spectacle in March 1990. She gave him the rating of “commendable,” the 2nd highest mark possible, and indicated that “his work is done quickly and accurately; total job responsibilities are met.” Mason’s one thousand nine hundred ninety review of Ryther also stated in part: “As anchor: knows the market & key players/contacts[;] he wants to put on a good product-open to attempting fresh ideas․ As sports director-has developed good working relationship with the movers & shakers of the professional & college sports world.” With this kind of commendation written as late as March 1990, it is readily understandable how the jury could reject the prior market research of “underperformance” as the reason for Ryther’s termination.

Even assuming that the “research” allegedly relied upon included both the Atkinson reports and the one thousand nine hundred ninety Gallup Survey, we conclude that there is sufficient evidence for a reasonable jury to find that it played little or no role in KARE 11’s decision not to retain Ryther in 1991.

This then brings us to the one thousand nine hundred ninety Gallup Survey-the market research upon which Mason and Rios Brook specifically say they relied in making the decision not to rehire Ryther.

B. Ryther’s Claims that the one thousand nine hundred ninety Gallup Survey Was Biased

Ryther testified that the one thousand nine hundred ninety Gallup Survey questions were both designed and interpreted to provide an incomplete picture of viewers’ perceptions of his spectacle. He primarily challenged the one thousand nine hundred ninety Gallup Survey’s methods as an incomplete means of obtaining research concerning his spectacle.

Gallup surveyed a random sample of viewers using two methods: a “Q score technique” and open-ended questions. The Q score mechanism employs numerous questions to measure audience recognition and approval (particularly strong like and dislike) of the selected personalities. Ryther was among twenty-five on-air personalities included in this portion of the survey.

Open-ended questions, by contrast, permit viewers to describe identified persons in their own words, and by Gallup’s description are “designed to help [stations] build up a more accomplish understanding of what viewers think about key personalities.” For example, the one thousand nine hundred ninety Gallup Survey asked viewers, “How would you describe Jeff Passolt? What comes to mind that you particularly like or dislike about him as a newscaster?” The ten key personalities included Rosen, Passolt, and KARE 11’s other lead anchors, among others. Ryther, however, was excluded from this portion of the research.

Ryther also notes Janet Mason’s admission that in advance of the research she told Gallup that one of the “important issues” about which KARE eleven sought information was “the sportscaster position.” Albeit Mason identified Passolt and Rosen as “key personalities” for purposes of the research project, she did not so characterize Ryther. Rather, she justified the omission of open-ended questions about Ryther on the grounds that their inclusion would have made the survey “too long” and that similar questions had been asked about him in one thousand nine hundred eighty nine research conducted by Atkinson. Mason also admitted, however, that the one thousand nine hundred eighty nine Atkinson project asked such “free response” questions concerning each of the ten other “key personalities.”

KARE eleven dismisses Ryther’s argument that KARE eleven designed the one thousand nine hundred ninety Gallup Survey in a manner unfavorable to him as an irrelevant argument that is “without foundation and intrusive of KARE’s business judgment.” Reply Br. at 8. KARE 11’s statement not only mischaracterizes Ryther’s attack on the survey, which is plainly a claim that the survey was biased, but is incorrect as a matter of law. As the Supreme Court unanimously observed in Burdine, the fact “that the employer misjudged the qualifications of the [plaintiff] does not in itself expose [the employer] to ․ liability, albeit this may be probative of whether the employer’s reasons are pretexts for discrimination.” four hundred fifty U.S. at 259, one hundred one S.Ct. at one thousand ninety seven (emphasis added). The jury may thus consider as wholly relevant both whether the one thousand nine hundred ninety Gallup Survey was designed in a manner that from the outset disfavored Ryther, and whether the survey was actually a sound-as opposed to pretextual-basis upon which to make employment decisions.

It remains an open question whether, standing alone, this evidence would support the jury’s verdict. But we are worried with whether the overall evidence supports a reasonable inference that age motivated KARE 11’s deeds. Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. To that end, Ryther’s attack on the survey is probative. The ultimate concern, of course, is whether the employer gave an fair explanation of its behavior. See Harvey v. Anheuser-Busch, Inc., thirty eight F.3d 968, nine hundred seventy three (8th Cir.1994). Yet, in the nature of things, evidence that the defendant employer says it relied on inaccurate market research may assist the finder of fact in determining whether the employer is providing an fair explanation of its deeds. See Burdine, four hundred fifty U.S. at 259, one hundred one S.Ct. at 1097.

As the district court held, the jury reasonably could have found KARE 11’s explanations to be “trivial” and inferred that the real reason defendants omitted Ryther from the open-ended questions was a fear that the results of the survey would undermine their age-based decision not to renew his contract. Relatedly, a reasonable jury might also infer that, if it was unwieldy or redundant to repeat such questions about Ryther, KARE eleven ought to have excluded such repetitious questions about Passolt and Rosen as well. In other words, a reasonable jury could have reasoned that, if it was redundant and costly to ask open-ended questions about Ryther, it was redundant and costly to ask open-ended questions about Rosen, Passolt, and the other eight “key personalities,” all of whom were included in the one thousand nine hundred eighty nine Atkinson research. The fact that KARE eleven did not include Ryther in this portion of the one thousand nine hundred ninety Gallup Survey reasonably suggests that KARE eleven had already determined to terminate Ryther. Moreover, as the district court stated, the long delay inbetween the research results and the time of Ryther’s notice of dismissal reasonably suggests the defendants did not want to provide Ryther an chance to address his weaknesses, and thus supports the inference that KARE eleven had an age-based agenda to terminate Ryther. The jury had every right to believe that the survey was inadequate, biased, and in fact a subterfuge to mask KARE 11’s age-based animus against Ryther.

C. Mason’s Treatment of Ryther Before the Gallup Survey of 1990

The district court found sufficient evidence for the jury to conclude that Janet Mason’s decision not to renew Ryther’s contract was made before the one thousand nine hundred ninety Gallup Survey was commissioned. The evidence to this effect included Ryther’s testimony that: (1) inbetween one thousand nine hundred eighty eight and 1990, KARE eleven transferred his duties to junior members of the sports department; (Two) when Mason assumed her role as Ryther’s supervisor in 1988, KARE 11’s managing editor Marie Kurken told him to “watch [his] back” because Mason “was out to get” him, and he “was number one on her list, on her hit list, to get out of that news room”; (Trio) Mason treated Ryther as tho’ he “couldn’t seem to do anything right”; and (Four) when Mason took over, he “went from being a valued member of the news staff sports department to almost a-in Janet Mason’s eyes, as an incompetent. And incidents kept happening that underlined and verified those words of Marie Kurken. It kept happening and happening and happening, so I noted them.” In addition, there was documentary and testimonial evidence that Mason, in March 1990, gave Ryther the rating of “commendable,” stating that his “work is done quickly and accurately; total job responsibilities are met,” but shortly thereafter, when notifying him of his dismissal, explained the decision as based on the displaying of earlier research that Ryther was a “failure” in the market.

In McDonnell Douglas Corp., the Court observed that “evidence that may be relevant to any showcasing of preposition includes facts as to the [employer’s] treatment of [plaintiff] during his prior term of employment.” four hundred eleven U.S. at 804, ninety three S.Ct. at 1825. As the unanimous McDonnell Douglas Court understood, evidence that the defendant treated the plaintiff, whose spectacle remained stable across the relevant period, differently upon a switch in supervisors may, together with the elements of the prima facie case and evidence that the fresh supervisor “was out to get” him, support a reasonable inference that age motivated that difference in treatment. Id.; see also Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at two thousand seven hundred forty nine (As the Court explained, a jury’s disbelief of employer’s explanation, together with prima facie case, suffices to display intentional discrimination “particularly if disbelief is accompanied by a suspicion of mendacity.” (emphasis added)). Ten

A jury might reasonably infer from Ryther’s “unimproved showing” that KARE eleven felt his long-term spectacle justified the non-renewal of his contract. But a reasonable jury might also infer that KARE 11’s continuous approval and commendable ratings of that spectacle belie that claim. There exists substantial evidence that, after Janet Mason became Ryther’s supervisor (and before the one thousand nine hundred ninety Gallup Survey), KARE eleven determined that Ryther’s contract should not be renewed. Moreover, it cannot be said that no reasonable jury could have rejected as contrived Mason’s explanation that she rated Ryther favorably in March one thousand nine hundred ninety out of fear that rating him unfavorably would cause him to fall apart emotionally. Such a statement may show up untruthful to reasonable sensibilities. A reasonable jury could also infer that Mason failed to notify Ryther of his alleged deficiencies for fear that he might correct them, eleven or that Mason treated Ryther as “an incompetent” because she harbored an age-based animus against him. See Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. In sum, a reasonable jury could infer that Mason had made a decision to terminate Ryther before the one thousand nine hundred ninety Gallup survey was conducted.

D. Ryther’s Claims that KARE eleven Had a Corporate Atmosphere Unfavorable to Older Employees

The district court relied on several portions of the record in holding that Ryther’s evidence of a corporate atmosphere unfavorable toward older employees could reasonably support the jury’s inference that Ryther was the subject of age discrimination. KARE eleven contends this evidence is insufficient, noting that statements made by employees not involved in Ryther’s non-renewal and stray remarks in the workplace do not give rise to a reasonable inference of discrimination. Not only is KARE 11’s reduction of this evidence to a few “stray remarks” factually incorrect, but, more importantly, such evidence can, if sufficient together with other evidence of preposition, support a reasonable inference of age discrimination. As the Supreme Court stated in McDonnell Douglas:

Other evidence that may be relevant to any demonstrating of excuse includes facts as to the [employer’s] ․ general policy and practice with respect to [older persons’] employment. On the latter point, statistics as to [defendant’s] employment policy and practice may be helpful to a determination of whether [its] refusal to rehire [plaintiff] conformed to a general pattern of discrimination against [older employees].

411 U.S. at 804-05, ninety three S.Ct. at one thousand eight hundred twenty five (footnote and citations omitted).

Albeit Ryther did not present his case in the form of statistical evidence, he did suggest testimony suggesting KARE 11’s deeds “conformed to a general pattern of discrimination” against older employees. Id. at 805, ninety three S.Ct. at 1825. This evidence included: Ryther’s testimony that he was criticized for the bags under his eyes; Mason’s testimony that she once considered permitting Ryther to wear glasses because she felt they might help cover them; testimony that several older employees were abruptly given poor spectacle ratings and compelled to choose inbetween early retirement and demotions; testimony that others in the sports department made cutting remarks about Ryther’s age, calling him an “old fart,” an “old man,” and telling he was “too old to be on the air,” and “had no business being in the industry any more for his age”; testimony that Shaver and Mason had frequent discussions about Ryther; and testimony that Shaver complained about Ryther to Mason on ostensibly age-related grounds. In the latter connection, the following excerpt from the testimony of Edward Villaume, a former sports department intern, is illuminating:

Q: Did you ever hear Randy Shaver make comments about Tom’s age?

Q: And what comments did you hear Randy make about Tom’s age?

A: Randy Shaver called Tom Ryther an old man, an old fart, and said he was too old to be on the air.

Q: Did you hear Jeff Passolt make any comments about Tom’s age?

Q: And what comments did you hear Jeff Passolt make about Tom’s age?

A: That Tom was an old man. He called him too old to be on the air, couldn’t figure out why Randy and himself, Jeff, were not number one, and that Tom had no business being in the industry any more for his age, called him an old fart as well.

Q: Did you hear Randy Shaver make his comments on more than one occasion?

Q: Approximately how many times did you hear Randy Shaver make those comments?

A: I would say approximately ten or more.

Q: Did you hear Jeff Passolt make those comments on more than one occasion?

Q: And approximately how many times did Jeff Passolt make those comments?

A: Somewhere around ten. Not as often as Randy.

Q: Did you ever hear Dave Levine, or Levine, make comments about Tom Ryther’s age?

A: Yes, I did. Dave would often chime right in with Randy and Jeff, or would make a comment on his own about Tom’s age.

Q: Had you ever heard Randy Shaver complain to Janet Mason in your presence?

Q: Can you tell us about what was said on that occasion when you were present when Randy complained to Janet Mason?

A: Randy had said to Janet that Tom was never around any more, that he was on the phone, and that he just wasn’t able to seize the fresh computer system and couldn’t treat the, kind of the newer technology.

Q: Did you ever hear any other staff members make comments about Tom’s age?

Q: And who was that?

A: Brian Singer, who was a camera man, had mentioned that more than once, and also had mentioned the fact that he could not understand how Tom was still in the business and why Randy and Jeff were not the number one anchor position there in the sports department.

KARE eleven argues that the statements referenced in this testimony were not those of persons responsible for the decision not to renew Ryther’s contract. To the extent that these statements were made outside the presence of the decisionmakers, KARE eleven is correct that they do not, standing alone, raise an inference of discrimination. Compare Frieze, nine hundred fifty F.2d at 541-42 (reversing denial of defendant’s movability for JNOV) with Morgan v. Arkansas Gazette, eight hundred ninety seven F.2d 945, 950-51 (8th Cir.1990) (affirming denial of defendant’s maneuverability for JNOV). The evidence also exposes, however, that Shaver and Mason had frequent discussions about Ryther, and that they discussed Ryther’s capability to “grasp” some of the “newer” developments at the station. Furthermore, other evidence shows that Mason was generally responsive to Shaver’s ideas and requests, including his request that Ryther be taken off Prep Sports Extra. The jury could thus reasonably infer that Mason formed her judgment about Ryther on the basis of the discriminatory comments frequently made by Shaver, Passolt, Levine, and Singer, and acted on them by terminating him.

KARE eleven dismisses the testimony of three former KARE eleven employees that the station was systematically ridding itself of older employees because those employees were dissimilarly situated and because “ ‘individual employees’ opinions of deeds taken by their employer, ․ in themselves, are insufficient to support [Ryther’s] argument that his age was a determining factor in his discharge.’ ” Appellants’ Br. at thirty five (quoting Morgan, eight hundred ninety seven F.2d at nine hundred fifty (alteration ours)). Twelve As to KARE 11’s reliance on Morgan, we think Judge John R. Gibson’s opinion for this Court in Morgan supports our conclusion:

Much of the testimony recited above can be described as no more than individual employees’ opinions of deeds taken by their employer, which, in themselves, are insufficient to support Morgan’s argument that his age was a determining factor in his discharge. There was, however, evidence that, during Tinker’s administration, a pattern of employees over the age of forty leaving the circulation department and being substituted by junior employees developed. As we observed in MacDissi v. Valmont Industries, Inc., eight hundred fifty six F.2d one thousand fifty four (8th Cir.1988), in a similar context, “[t]his fact is certainly not conclusive evidence of age discrimination in itself, but it is surely the kind of fact which could cause a reasonable trier of fact to raise an eyebrow, and proceed to assess the employer’s explanation for this outcome.” Id. at 1058.

897 F.2d at 950-51 (emphasis added) (footnote omitted). The Morgan court went on to conclude that “additional threads of evidence which can be gleaned from the record,” including a reference to a former employer as an “old ‘fuddyduddy’ [who was] not wise enough to help” his department, and one employee’s “observation of a trend away from older, more experienced employees toward junior ones,” “support[ed] a finding that age was a determining factor in the decision to fire” the plaintiff. Id. at 951. Thus, while the statements of sports department employees are not, “in themselves,” sufficient to uphold the district court, those statements were relevant to the jury and, together with other evidence of preposition, such as a “trend” toward junior employees, and the elements of the prima facie case, support a reasonable inference of age discrimination.

The dissent argues that the articulation of a nondiscriminatory reason (i.e., Ryther’s low ratings from the market research, which allegedly demonstrate that he performed his job unsatisfactorily) ruins one of the elements of the prima facie case. This is wrong for several reasons. Very first, KARE eleven has never contended on appeal that Ryther failed to make a prima facie case; 2nd, in determining whether KARE eleven is entitled to a judgment as a matter of law, it is incumbent upon the trial court and the judges of this court to give the benefit of all favorable inferences to Ryther, who is the verdict holder; third, a trier of fact, when considering all of the evidence could reasonably find that the market research and the low rating of KARE 11’s sports department were based upon KARE 11’s own admission that it did not promote sports (and that “sports was relatively unimportant”); in addition, the record contains evidence, which the jury could reasonably believe, that the one thousand nine hundred ninety Gallup Survey, upon which Mason and Brook said they specifically relied in making the decision not to renew Ryther’s contract, was biased against Ryther; fourth, notwithstanding the earlier market research, KARE eleven as late as one thousand nine hundred ninety announced that Ryther performed his job in a “commendable” way and that his “total job responsibilities are met;” fifth, notwithstanding the earlier market research, Ryther’s contract was renewed three times with substantial raises.

Clearly, under the state of this record, whether Ryther was in fact performing his job satisfactorily and whether his spectacle met the reasonable expectations of KARE eleven was a question of fact for the jury.

In summary, the record as a entire supports a reasonable inference that age, and not some other factor, motivated KARE 11’s decision not to renew Ryther’s contract. The plaintiff produced staggering evidence as to the elements of a prima facie case, thirteen and strong evidence of pretextuality, which, when considered with Ryther’s work environment’s indications of age-based animus, clearly provide sufficient evidence as a matter of law to permit the trier of fact to find intentional discrimination. If this evidence is not sufficient for the plaintiff’s case to be submitted to a jury, it is difficult to hypothecate what evidence may ever achieve the threshold standard set forward by Burdine and Hicks. And, as the experienced district court judge stated, “[i]t is clear that the jury believed Ryther’s evidence and did not believe defendants’ proffered explanation.” Ryther, eight hundred sixty four F.Supp. at 1517.

In the alternative, KARE eleven requests a fresh trial. KARE eleven asserts it was prejudicial error to admit unconnected evidence and that the jury was given inaccurate and confusing instructions. We review both the district court’s admission of the evidence, O’Dell v. Hercules, Inc., nine hundred four F.2d 1194, one thousand two hundred (8th Cir.1990), and its choice of instructions, Resolution Trust Corp. v. Eason, seventeen F.3d 1126, one thousand one hundred thirty two (8th Cir.1994), for clear manhandles of discretion.

A. The Evidentiary Rulings

KARE eleven seeks a fresh trial on the basis of the district court’s evidentiary rulings. In particular, KARE eleven challenges the admission of evidence concerning settlement agreements, “stray remarks,” and anecdotal stories of other individuals, all of which, it asserts, were unconnected to KARE 11’s decision to terminate Ryther.

A fresh trial based on evidentiary rulings is adequate only when the challenged rulings were “so prejudicial as to require a fresh trial which would be likely to produce a different result.” O’Dell, nine hundred four F.2d at 1200. For the reasons stated by the district court, Ryther, eight hundred sixty four F.Supp. at 1523-25, we do not find that to be the case here.

B. The Jury Instructions

A party is entitled to an instruction which accurately states the law and is supported by the evidence. See, e.g., EEOC v. Atlantic Community Sch. Dist., eight hundred seventy nine F.2d 434, four hundred thirty six (8th Cir.1989). The jury instructions below adhered to the Hicks standard. See Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. Fourteen

KARE eleven asserts that these instructions failed to make clear that the jurors must find intentional age discrimination in order to comeback a verdict in Ryther’s favor. We disagree. The instructions acknowledged KARE 11’s proffered explanation for its decision and stated that Ryther was required to prove that its explanation was “merely a excuse or cover-up for intentional age discrimination.” We cannot say the court manhandled its discretion in failing to instruct the jury otherwise. Fifteen

KARE eleven also asks the Court to switch sides the jury’s finding of willfulness and to vacate its corresponding award. The station suggests a finding that it was negligent or aware of the ADEA is insufficient, in and of itself, to support a finding of voluntary discrimination, and urges that the only evidence of willfulness here is testimony that KARE eleven had anti-discrimination employment policies and had instructed managers concerning how to execute those policies.

The Supreme Court has stated that a disturbance of section 7(b) of the ADEA, twenty nine U.S.C. § 626(b), is deliberate “ ‘if the employer knew or displayed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.’ ” Hazen Paper Co. v. Biggins, five hundred seven U.S. 604, 614, one hundred thirteen S.Ct. 1701, 1708, one hundred twenty three L.Ed.2d three hundred thirty eight (1993) (quoting Trans World Airlines v. Thurston, four hundred sixty nine U.S. 111, 126, one hundred five S.Ct. 613, 624, eighty three L.Ed.2d five hundred twenty three (1985) (internal quotation marks and ellipsis omitted in original)). Upon review, the issue is whether a rational jury could have concluded KARE 11’s conduct met this standard. Glover v. McDonnell Douglas Corp., twelve F.3d 845, eight hundred forty eight (8th Cir.1994), cert. denied, five hundred eleven U.S. 1070, one hundred fourteen S.Ct. 1647, one hundred twenty eight L.Ed.2d three hundred sixty six (1994).

KARE eleven is correct to suggest that conduct that is “ ‘merely negligent’ ” will not support a finding of willfulness. Biggins, five hundred seven U.S. at 615, one hundred thirteen S.Ct. at one thousand seven hundred eight (quoting McLaughlin v. Richland Shoe Co., four hundred eighty six U.S. 128, 133, one hundred eight S.Ct. 1677, 1681, one hundred L.Ed.2d one hundred fifteen (1988)). It is also well established that our concern is not simply whether the employer acted voluntarily, but whether it consciously violated the ADEA. See Brown v. Stites Concrete, Inc., nine hundred ninety four F.2d 553, five hundred sixty (8th Cir.1993) (en banc); MacDissi v. Valmont Indus., Inc., eight hundred fifty six F.2d 1054, one thousand sixty one (8th Cir.1988). Thus, the Supreme Court has declined to hold “that a disturbance of the Act is ‘willful’ if the employer simply knew of the potential applicability of the ADEA.” Thurston, four hundred sixty nine U.S. at 127, one hundred five S.Ct. at 624.

That said, the employee need not, to prove willfulness, showcase “that the employer’s conduct was shocking, or provide direct evidence of the employer’s motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision.” Biggins, five hundred seven U.S. at 617, one hundred thirteen S.Ct. at 1710. And, as the Biggins Court emphasized, “[i]t would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, skill alone does not suffice for liquidated damages.” Id.

Ample evidence supports the jury’s finding that KARE eleven “more likely [knew] its conduct to be illegal” here. The record exposes that KARE eleven had equal employment chance (“EEO”) policies that clearly forbade age-based discrimination, and that its managers received EEO and affirmative act training. Other testimony demonstrated that all of KARE 11’s managers were instructed to prevent age discrimination. KARE 11’s directives spelled out that, before terminating an older employee, the manager should document the difficulties and suggest the employee help and retraining. Yet Ryther received no such assistance or offers.

This is not, however, the only evidence suggesting KARE eleven acted willfully. As noted above, Ryther testified that Mason repeatedly treated him “as tho’ he couldn’t seem to do anything right,” and that he “went from being a valued member of the news staff sports department to almost a-in Janet Mason’s eyes, as an incompetent.” Such evidence of repeated harassment may, together with other evidence, support a finding of willfulness. See Kelewae v. Jim Meagher Chevrolet, Inc., nine hundred fifty two F.2d 1052, one thousand fifty four (8th Cir.1992) (per curiam) (repeated incidents of harassment about the quality of employee’s work in conjunction with suggestions that he retire supports finding of wilfulness). Here, further evidence displayed that Mason and the others responsible made the decision not to renew Ryther’s contract prior to commissioning the one thousand nine hundred ninety Gallup Survey, but concealed that decision from him, perhaps because they did not want to give him a chance to improve his spectacle. This evidence, too, supports a finding of willfulness. See Tolan v. Levi Strauss & Co., eight hundred sixty seven F.2d 467, four hundred seventy one (8th Cir.1989) (“Evidence of concealment may display the employer knew its conduct violated the ADEA.”).

As the district court stated, “[i]t is clear that defendants were more than merely aware of the ADEA statute,” and “[t]his is not a case where the employer incorrectly, but in good faith, believed that the statute permitted a particular age-based decision.” Ryther, eight hundred sixty four F.Supp. at 1520. The entirety of the evidence suggests they knew they were violating the law in terminating Ryther on the basis of his age. At a minimum, it suggests those responsible were recklessly indifferent to the ADEA’s requirements.

The judgment of the district court is therefore affirmed.

I respectfully dissent. I conclude that KARE eleven is entitled to judgment as a matter of law or, at a minimum, a fresh trial.

As the court explains, when a discrimination case is submitted to the jury, the presumption created by plaintiff’s prima facie case is no longer relevant. But if the plaintiff has no direct evidence of age discrimination, as in this case, the elements of the prima facie case remain relevant, for they may, along with proof of preposition, please plaintiff’s ultimate cargo to prove age discrimination. Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. Thus, in submitting this case, the district court instructed the jury on four elements of Ryther’s prima facie case. See footnote 14, supra at p. 1087.

There is no rigid formula defining the elements of a prima facie case of discrimination. See United States Postal Serv. Bd. v. Aikens, four hundred sixty U.S. 711, 715, one hundred three S.Ct. 1478, 1481, seventy five L.Ed.2d four hundred three (1983). The elements necessarily vary depending upon, for example, the type of adverse employment activity that is challenged and the nature of the alleged discrimination. But in every case, those elements must be sufficient to raise a valid inference of unlawful discrimination. See Furnco Constr. Corp. v. Waters, four hundred thirty eight U.S. 567, 575-77, ninety eight S.Ct. 2943, 2948-50, fifty seven L.Ed.2d nine hundred fifty seven (1978). Here, the district court in my view failed to decently define the elements of Ryther’s prima facie case. To explain why, I must review some undisputed facts concerning Ryther’s employment history with KARE 11.

Ryther was very first hired as Channel 11’s lead sportscaster in 1979, when he was forty one years old and the station was under different ownership. Ryther was given a three-year immovable term contract at an initial annual salary of $55,000. The contract was renewed in 1982. Gannett/KARE eleven acquired Channel eleven in 1983. KARE eleven renewed Ryther’s contract for extra three-year terms in one thousand nine hundred eighty five and 1988. During the final year of the one thousand nine hundred eighty eight contract, Ryther was paid an annual salary of $160,000.

Television broadcasting stations commonly conduct periodic market research to survey the popularity of both the station and its on-air “personalities” in the local market. In December 1981, the independent research stiff of Atkinson-Farris Communications surveyed the Twin Cities television audience for Channel 11. The researchers reported that Channel eleven was a distant third in “rating” among the three Twin Cities network affiliates. One Regarding the popularity of Ryther, Atkinson-Farris reported:

The situation for Tom Ryther is particularly unfortunate. Very first, his overall [Quality] Score is not amazing (17), but more significant, viewers of [Channel 11] are not even enthusiastic. A Quality Score of eighteen from supporters of a personality’s own station is enormously low.

Inbetween May one thousand nine hundred eighty six and October 1988, Gannett’s in-house research organization conducted a number of “Tracking Studies” of the Twin Cities market. These studies showcased Ryther’s market influence and capability to attract viewers holding sustained, well below KARE 11’s newly-hired news and weather anchors. The studies also exposed that Mark Rosen, the fresh lead sportscaster for arch-rival WCCO, had already passed Ryther in these popularity measures.

In 1989, the Atkinson research stiff again surveyed the Twin Cities television audience for KARE 11. It found that KARE 11’s news programs had made “massive progress” since 1981, pulling even with WCCO in overall customer preference, well ahead of the third network affiliate. It found that KARE 11’s lead news anchor had “the broadest base of support among newscasters in the market,” and that its weather anchor was “the on-air person with the broadest appeal and greatest pulling power.” However, it characterized KARE eleven sports as “the softest part of your team.” It found that Ryther had “virtually the same ratings he had in our one thousand nine hundred eighty one project,” while Mark Rosen “has been able to come into the market during that time and pass Ryther.” The report also noted that sports was relatively unimportant to viewers in choosing a local news program; only five percent of the persons surveyed listed sports as a reason for their newscast preferences.

In 1990, KARE eleven retained the Gallup organization to again survey the Twin Cities market. The Gallup survey again found that sports was a “low interest” facet of KARE 11’s broadcasts, with a value of six percent (compared, for example, to weather’s seventy six percent). Gallup also reported that Ryther had relatively high viewer recognition (76 percent, compared to eighty one percent for Mark Rosen), but low net influence (28 percent, compared to forty five percent for Rosen). KARE 11’s other sportscasters, Jeff Passolt and Randy Shaver, had low recognition and low net influence. Because a widely recognized personality should attract more viewers, Gallup’s pro, Dr. Frank Newport, testified that Ryther’s scores-high recognition but low net impact-placed him in Gallup’s “penalty box.” The Gallup report concluded:

The data suggest that Tom Ryther is not a strongly positive factor for KARE. The sportscaster position is the only front four role which is not packed by a very strong player for KARE. Ryther himself does below average on many of the key indicators created in this research: he underperforms based on where we think he should be based on his recognition and years in market.

Passolt, on the other palm, is no superstar either. His overall net influence, in fact, is harshly the same as Ryther’s. The plus for Passolt would show up to be that he has a lower recognition, and thus is now performing at a higher level rel[ative] to where we think that he should be. Thus, it is our opinion that Passolt has the higher potential for the station.

At any rate, a switch in sportscaster would emerge to have a relatively low down-side risk for the station as Ryther is no starlet as is.

Shortly after receiving the Gallup report in the fall of 1990, KARE eleven determined not to renew Ryther’s contract in July 1991. However, the station also determined to leave Ryther in place until his three-year contract expired in July 1991. Two Because KARE eleven permitted Ryther to finish his three-year contract term, the refusal to suggest him a fresh contract in one thousand nine hundred ninety one was, in essence, a refusal to hire. Thus, no matter how favorable Ryther’s internal spectacle reviews at KARE eleven had been in the past, the relevant question in July one thousand nine hundred ninety one was whether he was qualified to be hired (or rehired) as the lead sportscaster at a Twin Cities television station at a salary of $160,000 per year.

The district court’s jury instruction took no account of this critical aspect of the case. Far worse, the instruction quoted in footnote fourteen significantly misstated the elements of Ryther’s prima facie case when it instructed the jury to find whether, “Second, plaintiff’s job spectacle was satisfactory,” and “Third, plaintiff was terminated from his job when his contract was not renewed.” This instruction told the jury to disregard the fundamental difference inbetween the decision whether to rehire an employee whose fixed-term contract has expired, and the decision whether to terminate an employee who has worked without the assured but limited security of a fixed-term contract.

The instructions also disregarded another essential aspect of the evidence in this case that impacts upon the elements of a prima facie case. The one thousand nine hundred eighty nine and one thousand nine hundred ninety research showcased that (i) KARE eleven had gained substantial overall ratings despite a powerless sports anchor, and (ii) sports attracts relatively few Twin Cities viewers. Following Ryther’s non-renewal, his duties were spread among the remaining KARE eleven sportscasters; no one was added to the KARE eleven sports team. The independent market research justified KARE 11’s decision to reduce this part of its newsroom force by not renewing an underperforming, very compensated lead sportscaster and redistributing his job among the remaining staff. Compare Thomure v. Phillips Furniture Co., thirty F.3d 1020, one thousand twenty four (8th Cir.1994), cert. denied, five hundred thirteen U.S. 1191, one hundred fifteen S.Ct. 1255, one hundred thirty one L.Ed.2d one hundred thirty five (1995). Thus, the case had evidentiary elements of a reduction-in-force, and the jury should have been instructed accordingly.

In my view, this was prejudicial instruction error. Given ten years of market research demonstrating that Ryther lacked the capability to attract local viewers, no Twin Cities station would have considered him qualified for his former position and salary. Three Thus, the independent market research gave KARE eleven a powerful, objective business reason for not renewing Ryther’s contract that, in addition, refuted an essential element of his prima facie case. Compare Hayman v. National Acad. of Sciences, twenty three F.3d 535, five hundred thirty eight (D.C.Cir.1994); Craft v. Metromedia, Inc., seven hundred sixty six F.2d 1205, one thousand two hundred sixteen (8th Cir.1985), cert. denied, four hundred seventy five U.S. 1058, one hundred six S.Ct. 1285, eighty nine L.Ed.2d five hundred ninety two (1986). Four And this research was disinterested, objective evidence gathered and suggested at trial by third party professionals. See Dace v. ACF Indus., Inc., seven hundred twenty two F.2d 374, three hundred seventy seven n. Six (8th Cir.1983).

In these circumstances, Ryther’s purported excuse evidence failed to create a submissible case of age discrimination. When the employer’s objective evidence not only tends to establish a legitimate, nondiscriminatory reason for the adverse employment activity, but also effectively refutes the plaintiff’s prima facie case, I think it very unlikely that excuse evidence can support a reasonable inference of age discrimination. Evidence of excuse “is relevant only to the extent it contributes to an inference that [KARE 11] intentionally discriminated against [Ryther] because of his age. See Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749.” Nelson v. Boatmen’s Bancshares, Inc., twenty six F.3d 796, eight hundred one (8th Cir.1994). Five

To summarize, ten years of independent market research established that Ryther was the overpaid, underperforming anchor of the least significant segment of KARE 11’s news team. Gallup recommended a switch, and KARE eleven acted on that recommendation. “[T]he issue is not whether the reason articulated by the employer warranted the discharge, but whether the employer acted for a nondiscriminatory reason.” Halsell v. Kimberly-Clark Corp., six hundred eighty three F.2d 285, two hundred ninety two (8th Cir.1982), cert. denied, four hundred fifty nine U.S. 1205, one hundred three S.Ct. 1194, seventy five L.Ed.2d four hundred thirty eight (1983). Albeit Ryther obviously persuaded the jury that KARE eleven treated him unfairly, I conclude he did not prove intentional age discrimination. Therefore, this case presents the same situation we faced in Barber v. American Airlines, Inc., seven hundred ninety one F.2d 658, six hundred sixty one (8th Cir.), cert. denied, four hundred seventy nine U.S. 885, one hundred seven S.Ct. 278, ninety three L.Ed.2d two hundred fifty four (1986):

We have cautiously read every page of the testimony at this trial, and we are persuaded that this stringent standard [for setting aside a jury verdict] has been met. The jury could rationally have believed that plaintiffs ought in good conscience to have been permitted to stay in Little Rock ․ but there is absolutely no substantial evidence in this record that would justify attributing American’s deeds to plaintiffs’ age.

Like the panel in Barber, I would hold that the district court erred in denying KARE 11’s post-trial motility for judgment as a matter of law. At a minimum, I believe that the district court’s prejudicial instruction errors warrant a fresh trial. Six For these reasons, I respectfully dissent.

1. Underperformance of any employee may serve as a decent and nondiscriminatory reason for discharge or for nonrenewal of an employment contract. If an employer’s decision is made on objective, reliable market surveys, it is clearly a policy decision belonging exclusively to the employer. However, if the stated reason is shown by substantial evidence to be pretextual, which is what the present case concerns, then, depending on the overall evidence, the jury may be permitted to consider whether the employer’s stated reason is the actual reason for the employer’s activity.

Two. The dissent urges that, since there is no dispute as to the existence of the market research displaying Ryther’s static spectacle, KARE 11’s reliance upon it is a finish defense to Ryther’s case. We respectfully submit that this is faulty reasoning; it avoids the issue of excuse. The issue is not whether the research is undisputed, but whether KARE 11’s reliance upon it as a reason for Ryther’s termination was pretextual, which in turn depends upon whether Ryther has produced sufficient evidence from which a jury could reasonably find that the market research was not the real reason KARE eleven refused to hire Ryther for another contractual term as Sports Director. It is significant to emphasize that we do not hold that this is what KARE eleven did; our inquiry is only to determine whether reasonable dudes and women of a jury had before them substantial evidence which would permit them to reject the reason KARE eleven suggested, i.e., market research, as one masking age discrimination. The factfinder must then determine from all of the evidence that the real reason was intentional discrimination.

Trio. It merits emphasis that it is for the jury to draw the inferences from the overall evidence, not judges of this court. This is especially true where conflicting inferences may be drawn from the overall evidence. Only where there is not substantial evidence, that is, no reasonable evidence existing to display pretextuality as to the reason given by the employer, may the trial court or this court find as a matter of law that the employer’s proffered non-discriminatory reason was not rebutted. See, e.g., Nelson v. J.C. Penney, seventy five F.3d 343, 345-46 (8th Cir.), reh’g en banc denied, seventy nine F.3d eighty four (1996). For example, if a plaintiff claimed that the reason for discharge was pretextual by demonstrating there were reasons other than age, such evidence of excuse would not, as a matter of law, be sufficient evidence of preposition masking age-based animus.

Four. The plaintiff’s presentation of a prima facie case creates a legal presumption of unlawful age discrimination. Burdine, four hundred fifty U.S. at two hundred fifty four & n. 7, one hundred one S.Ct. at one thousand ninety four & n. 7. This presumption places an obligation upon the employer (in order to avoid a judgment against it as a matter of law) to produce evidence of a legitimate, nondiscriminatory reason for the plaintiff’s discharge. Id. If the employer carries this cargo, the legal presumption of unlawful age discrimination “drops out of the picture,” and the plaintiff is no longer entitled to judgment as a matter of law. Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749; Burdine, four hundred fifty U.S. at 255, one hundred one S.Ct. at 1094. At this point, the plaintiff, who at all times retains the cargo of persuading the factfinder that he was the subject of intentional discrimination, may still succeed in proving his or her case, in one of two ways: “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by demonstrating that the employer’s proffered explanation is unworthy of credence.” Burdine, four hundred fifty U.S. at 256, one hundred one S.Ct. at 1095. The Supreme Court clarified this stage of the litigation in Hicks:The defendant’s “production” (whatever its persuasive effect) having been made, the trier of fact proceeds to the ultimate question: whether plaintiff has proven “that the defendant intentionally discriminated against [him]” because of his [age], [Burdine, four hundred fifty U.S. at 253, one hundred one S.Ct. at 1093]. The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to showcase intentional discrimination. Thus, rejection of the defendant’s proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, “[n]o extra proof of discrimination is required,” [Hicks v. St. Mary’s Honor Center,] nine hundred seventy F.2d, [487] at four hundred ninety three [8th Cir.1992] (emphasis added).509 U.S. at 511, one hundred thirteen S.Ct. at two thousand seven hundred forty nine (footnote omitted). Albeit the prima facie case, at this point, no longer creates a legal presumption of unlawful discrimination, the elements of the prima facie case, if accompanied by evidence of excuse and disbelief of defendant’s proffered explanation, permit the jury to find for the plaintiff. Id. This is not to say that, for the plaintiff to succeed, simply proving preposition is enough. As the Hicks Court explained, the plaintiff must still persuade the jury, from all the facts and circumstances, that the employment decision was based upon intentional discrimination. Five hundred nine U.S. at five hundred ten n. Four, one hundred thirteen S.Ct. at two thousand seven hundred forty nine n. Four.

Five. The dissent urges (without citation of authority) that there is a fundamental error (affecting the jury instructions and the elements of the prima facie case) in the district court’s failure to highlight that Ryther was not terminated by KARE 11, but rather was not rehired as an employee whose fixed-term contract had expired. We are totally unaware of any legal difference in evaluating either situation in an employment discrimination case. The jury was certainly apprised of the facts of the case, and clearly understood that the issue involved, the claim of age discrimination, arose from KARE 11’s refusal to renew Ryther’s contract. The uniform instructions suggested for use by federal courts refer to the terms discharge, refusal to hire, refusal to renew contract, etc., as interchangeable. See three Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions: Civil § 106.03 (4th Ed. Supp.1995). The same is true of the Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit § Five.11 (1995). The ADEA uses the terms interchangeably, specifically providing:It shall be unlawful for an employer-(1) to fail or turn down to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;․29 U.S.C. § 623(a). In brief, the two are generally equated. See also Lee v. Rapid City Area Sch. Dist., nine hundred eighty one F.2d 316, three hundred twenty five (8th Cir.1992) (en banc) (Loken, J., dissenting) (“Lee was discharged (nonrenewed),․”).

6. See United States Postal Serv. Bd. of Governors v. Aikens, four hundred sixty U.S. 711, 716, one hundred three S.Ct. 1478, 1482, seventy five L.Ed.2d four hundred three (1983) (“sensitive and difficult” issue of intentional discrimination will frequently be proven by circumstantial evidence of excuse, as “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes”); id. at seven hundred fourteen n. Three, one hundred three S.Ct. at one thousand four hundred eighty one n. Three (“As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence. The trier of fact should consider all the evidence, providing it whatever weight and credence it is worth.”); International Bhd. of Teamsters v. United States, four hundred thirty one U.S. 324, three hundred fifty eight n. 44, ninety seven S.Ct. 1843, 1866, fifty two L.Ed.2d three hundred ninety six (1977) (“[T]he McDonnell Douglas formula does not require direct proof of discrimination.”); McDonnell Douglas, four hundred eleven U.S. at 804-05, ninety three S.Ct. at 1825-26 (listing various types of circumstantial evidence as relevant to displaying of excuse); Hicks, five hundred nine U.S. at 534, one hundred thirteen S.Ct. at two thousand seven hundred sixty two (1993) (Souter, J., dissenting) (describing “indirect proof” as “crucial” because “employers who discriminate are not likely to announce their discriminatory motive”); Price Waterhouse v. Hopkins, four hundred ninety U.S. 228, 273, one hundred nine S.Ct. 1775, 1803, one hundred four L.Ed.2d two hundred sixty eight (1989) (O’Connor, J., concurring in judgment) (emphasis in original) (noting that “requiring the plaintiff to prove that any one factor was the definitive cause of the decisionmakers’ activity may be tantamount to announcing [anti-discrimination law] inapplicable to such decisions”); Nitschke v. McDonnell Douglas Corp., sixty eight F.3d 249, two hundred fifty one (8th Cir.1995) ( “An age-discrimination plaintiff may rely on either direct or circumstantial evidence to prove that he has been the victim of unlawful discrimination.”).

7. In addition to the evidence of poor sports promotion, the jury reasonably could have believed Ryther’s evidence that KARE 11’s newscast gained a following not because of its personnel, but because of its programming following and preceding the newscast. “Cheers,” for example, followed the Ten:00 p.m. newscast.

8. In 1988, Mason herself negotiated a fresh three-year contract with Ryther.

9. At the same time, Nash wrote in part about Randy Shaver and Jeff Passolt, Ryther’s eventual junior replacements:RANDY SHAVERHis continued improvement is primarily a matter of content. None of the airchecks I viewed featured work that was memorable or especially creative in any way. It was simply competent, animated sportscasting.JEFF PASSOLTThe same criticisms apply to Jeff. His delivery is relaxed and professional. It is not exceptional, primarily because none of the stuff I witnessed featured any especially creative content.Id. at E6-E7 (emphasis added).

Ten. Of course, the inference of unlawful discrimination very first arises from the prima facie case itself, which “serves an significant function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection.” Burdine, four hundred fifty U.S. at 253-54, one hundred one S.Ct. at 1094; see id. at 258, one hundred one S.Ct. at 1096; Furnco Constr. Corp. v. Waters, four hundred thirty eight U.S. 567, 577, ninety eight S.Ct. 2943, 2949, fifty seven L.Ed.2d nine hundred fifty seven (1978). The inference of unlawful discrimination arises, a fortiori, however, from the rejection of defendant’s explanation of its deeds, as the jury’s disbelief of defendant’s reasons “eliminates” even more “nondiscriminatory reasons for the plaintiff’s rejection.” Burdine, four hundred fifty U.S. at 254, one hundred one S.Ct. at 1094.

11. In this regard, Ryther’s claim paralleled the proof of pretextuality plaintiff produced in our latest case of Nelson v. Boatmen’s Bancshares, Inc., twenty six F.3d 796, eight hundred two (8th Cir.1994):Because [defendant’s] April 27, 1989, memo shows he had already determined that [plaintiff] should be terminated and given early retirement and because [defendant] did not in fact permit [plaintiff] to correct his work spectacle, the jury could reasonably infer that [defendant] was hiding a motivation to fire Nelson because of his age.

12. The district court more decently observed:Eventually, there was evidence that defendants coerced other older employees to choose inbetween demotions or early retirement. Several of the older employees were all of a sudden given poor spectacle reviews after receiving years of superior ratings. Defendants contend that evidence concerning the older employees was not relevant because they were not on-air talent and, therefore, were not similarly situated to Ryther. Albeit the situations of the older employees and Ryther differ in some respects, the court finds there were enough similarities to render the evidence relevant and admissible. The court also concludes that a jury could reasonably find that defendants intentionally built poor spectacle cases against older employees, including Ryther.Ryther, eight hundred sixty four F.Supp. at 1519.

13. There exists no magical language in instructing a jury as to the elements of a prima facie case in a given situation. See U.S. Postal Serv. Bd. of Governors v. Aikens, four hundred sixty U.S. 711, 715, one hundred three S.Ct. 1478, 1482, seventy five L.Ed.2d four hundred three (1983) (internal quotations omitted) (“The prima facie case method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common practice as it bears on the critical question of discrimination.”) This court, following the established guidelines set down by the Supreme Court, has repeatedly set forward these elements in substantially the same terms as those used in three Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions: Civil § 106.03 (4th Ed.1987). See, e.g., Clements v. General Accident Ins. Co. of Am., eight hundred twenty one F.2d 489, four hundred ninety one (8th Cir.1987). This same language was adopted by Judge Doty in providing the instructions in the present case. In a case written by Judge Hansen on which Judge Loken sat, the court reiterated that:Thus, to make a prima facie case of age discrimination, Nelson must demonstrate that 1) he was within the protected age group, Two) that he was performing his job at a level that met his employer’s legitimate expectations, Trio) he was discharged, and Four) his employer attempted to substitute him.Nelson, twenty six F.3d at eight hundred (internal quotations omitted).

14. The court’s instruction cautiously told the jury:Plaintiff is not required to produce direct evidence of unlawful motive. Discrimination, if it exists, is seldom admitted, but is a fact which you may infer from the existence of other facts.In determining whether plaintiff’s age was a determining factor in defendants’ decision, you should very first consider whether plaintiff has established the following facts by a preponderance of the evidence.Very first, plaintiff was within the protected age group, that is, he was forty years of age or over.2nd, plaintiff’s job spectacle was satisfactory.Third, plaintiff was terminated from his job when his contract was not renewed.Fourth, a junior person with similar credentials substituted plaintiff.If plaintiff has failed to prove one or more of these facts, you must find for the defendants.If plaintiff has proven these facts, he has suggested evidence from which you could conclude that defendants discriminated against him because of his age.If you find that plaintiff has proven these facts, you must consider whether defendants have produced evidence of a reason, other than age, for not renewing plaintiff’s contract.Defendants have suggested evidence of legitimate nondiscriminatory reasons for their deeds. Therefore, plaintiff must prove by a preponderance of the evidence that the reasons suggested by defendants are merely a excuse or cover-up for intentional age discrimination.You should not consider whether the reasons given by defendants constitute a good or bad business decision. You may not comeback a verdict for plaintiff just because you may disagree with defendants’ decision or believe it was harsh or unreasonable.Furthermore, as Judge Doty pointed out, these instructions substantially conform with three Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions: Civil § 106.03 (4th Ed.1987). Ryther, eight hundred sixty four F.Supp. at 1521.

15. The dissent’s challenge to the sufficiency of the district court’s instruction is somewhat puzzling. Assuming, for the sake of argument, the instructions were deficient in failing to mention the various evidentiary nuances suggested by the dissent, these evidentiary concerns were neither the basis of KARE 11’s protestation in the district court nor, for that matter, raised on appeal. In addressing the issue here, the dissent disregards the admonition of Fed.R.Civ.P. 51, which requires a specific protestation to instructions to preserve such a claim on appeal.Furthermore, at no stage of this litigation has KARE eleven claimed that this is a “reduction-in-force” case. Such a defense does not emerge in KARE 11’s briefs, nor was the case pled or attempted in this manner in the district court. At the instruction conference, the only reference that was made to reducing the force was defense counsel’s protestation to the language in the court’s instruction that the plaintiff had to prove “a junior person with similar credentials was assigned to do the same work.” Defense counsel suggested it would be more adequate, rather than to use the word “assigned,” to instruct that “a junior person with similar credentials substituted Mr. Ryther.” Defense counsel emphasized that “replaced” was a neutral word. The court acquiesced in this request, there was no protestation by plaintiff’s counsel, and defense counsel approved the court’s switch in the instruction to read: “A junior person with similar credentials substituted plaintiff.” After this colloquy, defense counsel said that he did not have any other protestations. For the dissent now to argue that the jury should have been instructed about a reduction in force is factually inaccurate and irrelevant to the case. To suggest, in the absence of such an protestation at trial, that a fresh trial should now be given on the basis that the instructions were not technically correct, is indeed disturbing. See Anderson Marketing, Inc. v. Design House, Inc., seventy F.3d 1018, one thousand twenty (8th Cir.1995) (per curiam) (“It is a fundamental rule of federal appellate procedure that we may only pass on a district court’s ruling if a party challenges that ruling on appeal by raising the issue in its opening brief.”); id. (collecting cases); Fed. R.App. P. 28(a)(Two), (Four).Furthermore, as outlined in our opinion, the alleged evidentiary deficiencies raised by the dissent not only are without merit, but misconstrue the purpose behind the court’s instructions in a jury case. To suggest that a jury should be instructed on the argumentative details of evidence, in order better to understand a party’s theory of the case, totally overlooks the role of the trial court in instructing the jury on the law governing their deliberations.It is not for the trial court, in instructing the jury, to emphasize the evidence favorable to one side over the other. This is especially true when the inferences to be drawn from the overall evidence are conflicting and could lead to different results. As Justice Frankfurter urged years ago, juries are not “too stupid to see the drift of evidence.” United States v. Johnson, three hundred nineteen U.S. 503, 519, sixty three S.Ct. 1233, 1241, eighty seven L.Ed. One thousand five hundred forty six (1943). Moreover, such a suggestion is totally out of order when a party does not request a specific instruction or object to the instructions given.

1. A station’s rating (number of viewers) is critical because advertising charges, and therefore revenues, depend upon rating.

Two. Exceptionally, the court repeatedly draws adverse inferences from KARE 11’s delay in advising Ryther of its decision not to renew. Having decently concluded to honor its contractual commitment, KARE eleven would have been foolish, as well as insensitive, to advise this high-profile employee of its adverse decision before Spring 1991.

Trio. The court’s concentrate on the fact that Ryther finished 2nd to Mark Rosen in Gallup’s explore of net influence on viewers reminds me of a Russian parable describing the Soviet press. After President Kennedy defeated Chairman Krushchev in a 100-yard dash, Pravda reported: “Our beloved Nikita finished a respectable 2nd place, while the American President was a dismal next-to-last.”

Four. At trial, KARE 11’s three decisionmakers consistently identified market research as the reason Ryther was not rehired. Janet Mason testified, “the primary information or device that we used in making that decision was the research.” Linda Rios Brook testified Ryther was not renewed “[o]n the basis of the research. That was the overriding reason.” Richard Modig testified, “Well, it was indeed the research. I think the research, especially over a long period of time, was crystal clear.”

Five. A prime example of irrelevant excuse evidence are the scraps of newsroom backbiting related at length in the court’s opinion. To sustain, television stations must concentrate on a personality’s capability to attract audience, not on his age or the bags under his eyes. One of the most beloved sportscasters today is the elderly Harry Caray, whose nationwide broadcasts of Chicago Cubs baseball games have helped make the perennially unsuccessful Cubs one of the most popular teams in the National League. Does the court gravely believe that KARE eleven would have non-renewed a term contract with Harry Caray because some ambitious but unproven underling complained that he was an “old fart” who shouldn’t be on the air?

6. I agree with KARE eleven that the instruction quoted in footnote fourteen did not decently convey to the jury the Supreme Court’s teachings in Hicks. I note that the court does not approve that instruction, and I would discourage its use in future cases.

RYTHER v

RYTHER v. KARE eleven NBC

C. Thomas RYTHER, Plaintiff-Appellee, v. KARE 11, an NBC Affiliate; Gannett Co., Inc., Defendants-Appellants.

Determined: May 31, 1996

KARE 11, a Twin Cities television station, refused to renew C. Thomas Ryther’s contract as lead sportscaster for a fifth three-year term. In 1991, when Ryther was terminated, he was fifty-three years old. Ryther sued KARE eleven and its parent, Gannett Co., Inc. (collectively “KARE 11”), alleging a disturbance of the Age Discrimination in Employment Act (“ADEA”), twenty nine U.S.C. §§ 621-634. Following a jury verdict in Ryther’s favor, the district court, the Honorable David S. Doty presiding, denied a motility for a fresh trial and, alternatively, a motility for judgment as a matter of law. The court entered judgment awarding Ryther $1,254,535 in back pay, front pay, liquidated damages, and attorneys’ fees. See Ryther v. KARE 11, eight hundred sixty four F.Supp. One thousand five hundred ten (D.Minn.1994). KARE eleven appeals. We affirm the judgment of the district court.

Ryther served as a sports anchor for Channel eleven from December one thousand nine hundred seventy nine until July 1991, pursuant to a series of four three-year contracts. Gannett/KARE eleven purchased the station in 1983, and in one thousand nine hundred eighty eight Janet Mason became KARE 11’s vice president of news. At that time, the sports department’s members included Jeffrey Passolt and Randy Shaver, both under age 40. Ryther then appeared on the six o’clock and ten o’clock news and hosted a weekly display, “Prep Sports Extra,” during the football season. Passolt did a sports feature on the five o’clock news and, along with Shaver, served as weekend sports anchor.

In the summer of 1988, Ryther was approximately fifty years of age. Ryther’s responsibilities began switching that year, shortly after Mason’s appointment to vice president. KARE eleven liquidated Ryther from Prep Sports Extra, which he then co-anchored with Shaver, and during 1989, the year in which Linda Rios Brook became station manager, Mason liquidated Ryther from the six o’clock news and assigned him to a recreational segment on the five o’clock news. Passolt substituted Ryther as sports anchor during the six o’clock time slot. In May 1990, Shaver was named executive producer of sports, a position to which Ryther was entitled under his contract. Shaver assumed many of Ryther’s organizational and planning duties.

On March 6, 1991, shortly after Ryther discovered he was being excluded from promotional photos, Ryther confronted Mason about the status of his contract. Mason told him his contract would not be renewed because he had failed in the market research. After several events detailed in the district court’s opinion, Ryther, eight hundred sixty four F.Supp. at 1515-16, Ryther left KARE eleven and filed this lawsuit.

The decision not to renew Ryther’s contract was made by Rios Brook, Richard Modig, Vice President of Broadcast Operations, and Mason. When Rios Brook was asked at trial what market research she “relied on” in making the decision about Ryther, she responded that it was the “Gallup” research, in reference to a survey conducted for KARE eleven in June one thousand nine hundred ninety by the Gallup Organization (“1990 Gallup Survey”). Tr. IV-136. Mason, similarly, said that she arrived at that decision after she got the one thousand nine hundred ninety Gallup Survey. Tr. V-194, V-197.

In earlier years, one thousand nine hundred eighty one and 1989, there had been other market research, performed by the Atkinson-Farris Communications research rock-hard (“Atkinson”), to determine KARE 11’s ratings. In 1981, the Atkinson research found that Ryther was “not impressive” and that his quality score was “extremely low.” In 1989, Atkinson again did a survey for KARE eleven and found sports “the softest part of your team.” Ryther had “virtually the same ratings” as he had in 1981.

In 1990, partially because KARE eleven found the Atkinson research incomplete, KARE eleven sought fresh market research by commissioning the one thousand nine hundred ninety Gallup Survey. The one thousand nine hundred ninety Gallup Survey reported that Ryther had seventy-six percent viewer recognition, whereas Mark Rosen, a sportscaster at competitor WCCO, had eighty-one percent recognition. Rosen was rated number one and Ryther number two in the overall Twin Cities’ market. The one thousand nine hundred ninety Gallup Survey reported that Ryther “underperform[ed]” and that he was not a strong player for KARE 11. One

KARE eleven urges that, upon receipt of the one thousand nine hundred ninety Gallup Survey, Mason, Rios Brook, and Richard Modig, KARE 11’s vice president of operations, made the decision not to renew Ryther’s contract in August 1990. The primary issue at trial, and also on this appeal, is whether the overall market research was the true reason for Ryther’s dismissal, or merely a preposition for age discrimination. Ryther asserts that he suggested evidence to demonstrate that this was not true, that in fact the decision was made prior to that time, and that the research was biased and merely a preposition for unlawful age discrimination.

The district court, in overruling KARE 11’s motility for judgment as a matter of law, cautiously summarized the evidence from which a jury could reasonably find that the alleged nondiscriminatory reason for refusing to rehire Ryther was false. In this regard, Judge Doty found that there was sufficient evidence for the jury reasonably to conclude that: the defendants made the decision not to renew Ryther’s contract before the one thousand nine hundred ninety Gallup Survey was undertaken; some of Ryther’s duties had been transferred to junior people and that his contract was not renewed despite positive spectacle evaluations from KARE 11; KARE eleven deceived Ryther by leading him to believe that his work was commendable, in order to prevent him from improving upon his alleged deficiencies; the one thousand nine hundred ninety Gallup Survey was purposely designed so that Ryther would not get a fair rating, thus masking the discriminatory reason for his termination; and KARE eleven provided a hostile work environment for Ryther because of his age. Ryther, eight hundred sixty four F.Supp. at 1515-18. Two

Our standard of review of this evidence is governed by lodged rule:

[W]e must consider the evidence in the light most favorable to [Ryther], assume all conflicts in the evidence were resolved by the jury in [Ryther’s] favor, and give [Ryther] the benefit of all favorable inferences that may reasonably be drawn from the proven facts. A judgment [as a matter of law] should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining [Ryther’s] position.

Frieze v. Boatmen’s Bank, nine hundred fifty F.2d 538, five hundred forty (8th Cir.1991) (internal citations and quotations omitted). Three

Stated another way, it is well lodged that we will not switch roles a jury’s verdict for insufficient evidence unless, after viewing the evidence in the light most favorable to the verdict, no reasonable juror could have returned a verdict for the non-moving party. Gardner v. Buerger, eighty two F.3d 248, two hundred fifty one (8th Cir. 1996).

The law governing the allocation of evidentiary burdens in age discrimination cases like this one is well established. See generally St. Mary’s Honor Ctr. v. Hicks, five hundred nine U.S. 502, five hundred ten & n. Four, one hundred thirteen S.Ct. 2742, two thousand seven hundred forty nine & n. Four, one hundred twenty five L.Ed.2d four hundred seven (1993); Texas Dep’t of Community Affairs v. Burdine, four hundred fifty U.S. 248, 252-56, one hundred one S.Ct. 1089, 1093-95, sixty seven L.Ed.2d two hundred seven (1981); McDonnell Douglas Corp. v. Green, four hundred eleven U.S. 792, 800-06, ninety three S.Ct. 1817, 1823-26, thirty six L.Ed.2d six hundred sixty eight (1973). Four

KARE eleven does not contend that Ryther failed to establish a prima facie case of age discrimination. There exists ample evidence that the jury could reasonably believe that (1) Ryther was within the protected age group (he was fifty-three years old); (Two) as manifested by his contract renewals and KARE 11’s own evaluations, he had been performing his job at a satisfactory level for over twelve years; (Trio) his contract in one thousand nine hundred ninety one was not renewed; five and (Four) KARE eleven substituted him with a junior person. (Jeff Passolt was only thirty-three years of age and did not have as high of a spectacle rating as Ryther.)

The dissent urges that, once KARE eleven articulated a non-discriminatory reason for its deeds, it was entitled to a judgment as a matter of law because it ruined plaintiff’s prima facie case. The articulation of a non-discriminatory reason by the employer ruins the legal presumption of plaintiff’s prima facie case, and plaintiff is therefore no longer entitled to a judgment as a matter of law. Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. However, as Hicks and Burdine make clear, if the employee can demonstrate that the reason given for the employer’s activity is pretextual, then the case moves to a fresh level of factual inquiry. Id. at 515, one hundred thirteen S.Ct. at two thousand seven hundred fifty two (citing Burdine, four hundred fifty U.S. at 255, one hundred one S.Ct. at 1094). Under these circumstances, assuming that there exists credible and substantial evidence of excuse, the plaintiff may still rely upon the elements of the prima facie case and the substantial evidence of pretextuality to urge to the trier of fact that the employer was guilty of intentional discrimination. Id. There is no synergistic formula to determine whether the elements of a prima facie case and excuse are sufficient to permit a jury to make a finding of intentional discrimination; we simply inquire whether there is substantial evidence which would permit a finder of fact to determine that the employer’s reasons were a subterfuge or mask to conceal age-based animus.

With this in mind, we again turn to the fundamental issue in this case: whether Ryther produced sufficient evidence to permit a jury reasonably to find that KARE eleven intentionally discriminated against him on the basis of his age. Albeit much of the evidence is circumstantial, we agree with the district court’s careful analysis that a reasonable jury could infer that KARE 11’s asserted reason for discharge was false, and that the evidence was sufficient to permit a jury to find that KARE eleven engaged in age discrimination. Six

A. The Market Research as a Entire

Ryther urges that the record is replete with evidence that his research ratings reflected not his abilities, but KARE 11’s failure to emphasize sports. The plenary evidence to this effect included the testimony of Ryther that, just days before his dismissal, Paul Baldwin, KARE 11’s assistant news director, told him, “[t]he research isn’t your fault,” and explained that Ryther’s demonstrating relative to WCCO’s Mark Rosen was the result of WCCO’s promotion of Rosen, its ownership of broadcast rights in several major sporting events, and its emphasis on sports generally. Other evidence displayed that Ryther continued to ask for better sports promotions, but was denied. In fact, Rios Brook admitted that “[sports] was not an area that I was worried about,” and Mason testified that “sports was relatively unimportant” in comparison to other parts of the newscast. Relatedly, Gallup Vice President Dr. Frank Newport admitted that Ryther’s demonstrating might be due in part to KARE 11’s poor promotion of sports and noted that Rosen’s recognition was “unusual” for a sportscaster. Yet despite KARE 11’s own lack of sports promotion, Ryther remained the number two sportscaster in the market, 2nd only to Rosen, and above KARE 11’s own Jeff Passolt and Randy Shaver. Seven

There can be little doubt that, albeit it had before it the one thousand nine hundred eighty one and one thousand nine hundred eighty nine Atkinson research, the jury could reasonably reject KARE 11’s alleged reliance upon Ryther’s low market ratings on the ground that KARE eleven kept rewarding Ryther for his spectacle. In fact, KARE eleven negotiated and awarded Ryther with substantial salary increases in three different interim three-year contracts. These contract renewals could lightly justify a finding that, in this interim time period, Ryther’s spectacle was more than adequate to fulfill KARE 11’s programming interests. Eight

In May 1989, Lilyan Wilder, a training consultant to KARE 11, copied a letter to Janet Mason, written to Ryther after reviewing his spectacle in a training session. The letter read in part:

It was a pleasure to see you again and to work with you. Your authority, your sense of “sports” and the essence of it, are excellent. Your timing, your play-by-play and your good, strong voice are all positive.

Appellee’s App. at E2 (emphasis added). Likewise, as late as August 1, 1990, Barry Nash, a talent coach hired by KARE eleven in 1990, wrote about Ryther to Mason and Baldwin:

Hats off to Tom for the effort to create reports with more universal appeal. Innovations like the Three Musketeers footage he used to begin his lump on fencing are certainly a step in the right direction.

Most significant, however, in the consideration of the conflicting evidence, notwithstanding the earlier Atkinson reports, is Mason’s individual review of Ryther’s spectacle in March 1990. She gave him the rating of “commendable,” the 2nd highest mark possible, and indicated that “his work is done quickly and accurately; total job responsibilities are met.” Mason’s one thousand nine hundred ninety review of Ryther also stated in part: “As anchor: knows the market & key players/contacts[;] he wants to put on a good product-open to attempting fresh ideas․ As sports director-has developed good working relationship with the movers & shakers of the professional & college sports world.” With this kind of commendation written as late as March 1990, it is readily understandable how the jury could reject the prior market research of “underperformance” as the reason for Ryther’s termination.

Even assuming that the “research” allegedly relied upon included both the Atkinson reports and the one thousand nine hundred ninety Gallup Survey, we conclude that there is sufficient evidence for a reasonable jury to find that it played little or no role in KARE 11’s decision not to retain Ryther in 1991.

This then brings us to the one thousand nine hundred ninety Gallup Survey-the market research upon which Mason and Rios Brook specifically say they relied in making the decision not to rehire Ryther.

B. Ryther’s Claims that the one thousand nine hundred ninety Gallup Survey Was Biased

Ryther testified that the one thousand nine hundred ninety Gallup Survey questions were both designed and interpreted to provide an incomplete picture of viewers’ perceptions of his spectacle. He originally challenged the one thousand nine hundred ninety Gallup Survey’s methods as an incomplete means of obtaining research concerning his spectacle.

Gallup surveyed a random sample of viewers using two methods: a “Q score technique” and open-ended questions. The Q score mechanism employs numerous questions to measure audience recognition and approval (particularly strong like and dislike) of the selected personalities. Ryther was among twenty-five on-air personalities included in this portion of the survey.

Open-ended questions, by contrast, permit viewers to describe identified persons in their own words, and by Gallup’s description are “designed to help [stations] build up a more finish understanding of what viewers think about key personalities.” For example, the one thousand nine hundred ninety Gallup Survey asked viewers, “How would you describe Jeff Passolt? What comes to mind that you particularly like or dislike about him as a newscaster?” The ten key personalities included Rosen, Passolt, and KARE 11’s other lead anchors, among others. Ryther, however, was excluded from this portion of the research.

Ryther also notes Janet Mason’s admission that in advance of the research she told Gallup that one of the “important issues” about which KARE eleven sought information was “the sportscaster position.” Albeit Mason identified Passolt and Rosen as “key personalities” for purposes of the research project, she did not so characterize Ryther. Rather, she justified the omission of open-ended questions about Ryther on the grounds that their inclusion would have made the survey “too long” and that similar questions had been asked about him in one thousand nine hundred eighty nine research conducted by Atkinson. Mason also admitted, however, that the one thousand nine hundred eighty nine Atkinson project asked such “free response” questions concerning each of the ten other “key personalities.”

KARE eleven dismisses Ryther’s argument that KARE eleven designed the one thousand nine hundred ninety Gallup Survey in a manner unfavorable to him as an irrelevant argument that is “without foundation and intrusive of KARE’s business judgment.” Reply Br. at 8. KARE 11’s statement not only mischaracterizes Ryther’s attack on the survey, which is plainly a claim that the survey was biased, but is incorrect as a matter of law. As the Supreme Court unanimously observed in Burdine, the fact “that the employer misjudged the qualifications of the [plaintiff] does not in itself expose [the employer] to ․ liability, albeit this may be probative of whether the employer’s reasons are pretexts for discrimination.” four hundred fifty U.S. at 259, one hundred one S.Ct. at one thousand ninety seven (emphasis added). The jury may thus consider as wholly relevant both whether the one thousand nine hundred ninety Gallup Survey was designed in a manner that from the outset disfavored Ryther, and whether the survey was actually a sound-as opposed to pretextual-basis upon which to make employment decisions.

It remains an open question whether, standing alone, this evidence would support the jury’s verdict. But we are worried with whether the overall evidence supports a reasonable inference that age motivated KARE 11’s deeds. Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. To that end, Ryther’s attack on the survey is probative. The ultimate concern, of course, is whether the employer gave an fair explanation of its behavior. See Harvey v. Anheuser-Busch, Inc., thirty eight F.3d 968, nine hundred seventy three (8th Cir.1994). Yet, in the nature of things, evidence that the defendant employer says it relied on inaccurate market research may assist the finder of fact in determining whether the employer is providing an fair explanation of its deeds. See Burdine, four hundred fifty U.S. at 259, one hundred one S.Ct. at 1097.

As the district court held, the jury reasonably could have found KARE 11’s explanations to be “trivial” and inferred that the real reason defendants omitted Ryther from the open-ended questions was a fear that the results of the survey would undermine their age-based decision not to renew his contract. Relatedly, a reasonable jury might also infer that, if it was unwieldy or redundant to repeat such questions about Ryther, KARE eleven ought to have excluded such repetitious questions about Passolt and Rosen as well. In other words, a reasonable jury could have reasoned that, if it was redundant and costly to ask open-ended questions about Ryther, it was redundant and costly to ask open-ended questions about Rosen, Passolt, and the other eight “key personalities,” all of whom were included in the one thousand nine hundred eighty nine Atkinson research. The fact that KARE eleven did not include Ryther in this portion of the one thousand nine hundred ninety Gallup Survey reasonably suggests that KARE eleven had already determined to terminate Ryther. Moreover, as the district court stated, the long delay inbetween the research results and the time of Ryther’s notice of dismissal reasonably suggests the defendants did not want to provide Ryther an chance to address his weaknesses, and thus supports the inference that KARE eleven had an age-based agenda to terminate Ryther. The jury had every right to believe that the survey was inadequate, biased, and in fact a subterfuge to mask KARE 11’s age-based animus against Ryther.

C. Mason’s Treatment of Ryther Before the Gallup Survey of 1990

The district court found sufficient evidence for the jury to conclude that Janet Mason’s decision not to renew Ryther’s contract was made before the one thousand nine hundred ninety Gallup Survey was commissioned. The evidence to this effect included Ryther’s testimony that: (1) inbetween one thousand nine hundred eighty eight and 1990, KARE eleven transferred his duties to junior members of the sports department; (Two) when Mason assumed her role as Ryther’s supervisor in 1988, KARE 11’s managing editor Marie Kurken told him to “watch [his] back” because Mason “was out to get” him, and he “was number one on her list, on her hit list, to get out of that news room”; (Trio) Mason treated Ryther as however he “couldn’t seem to do anything right”; and (Four) when Mason took over, he “went from being a valued member of the news staff sports department to almost a-in Janet Mason’s eyes, as an incompetent. And incidents kept happening that underlined and verified those words of Marie Kurken. It kept happening and happening and happening, so I noted them.” In addition, there was documentary and testimonial evidence that Mason, in March 1990, gave Ryther the rating of “commendable,” stating that his “work is done quickly and accurately; total job responsibilities are met,” but shortly thereafter, when notifying him of his dismissal, explained the decision as based on the demonstrating of earlier research that Ryther was a “failure” in the market.

In McDonnell Douglas Corp., the Court observed that “evidence that may be relevant to any showcasing of preposition includes facts as to the [employer’s] treatment of [plaintiff] during his prior term of employment.” four hundred eleven U.S. at 804, ninety three S.Ct. at 1825. As the unanimous McDonnell Douglas Court understood, evidence that the defendant treated the plaintiff, whose spectacle remained stable across the relevant period, differently upon a switch in supervisors may, together with the elements of the prima facie case and evidence that the fresh supervisor “was out to get” him, support a reasonable inference that age motivated that difference in treatment. Id.; see also Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at two thousand seven hundred forty nine (As the Court explained, a jury’s disbelief of employer’s explanation, together with prima facie case, suffices to display intentional discrimination “particularly if disbelief is accompanied by a suspicion of mendacity.” (emphasis added)). Ten

A jury might reasonably infer from Ryther’s “unimproved showing” that KARE eleven felt his long-term spectacle justified the non-renewal of his contract. But a reasonable jury might also infer that KARE 11’s continuous approval and commendable ratings of that spectacle belie that claim. There exists substantial evidence that, after Janet Mason became Ryther’s supervisor (and before the one thousand nine hundred ninety Gallup Survey), KARE eleven determined that Ryther’s contract should not be renewed. Moreover, it cannot be said that no reasonable jury could have rejected as contrived Mason’s explanation that she rated Ryther favorably in March one thousand nine hundred ninety out of fear that rating him unfavorably would cause him to fall apart emotionally. Such a statement may show up untruthful to reasonable sensibilities. A reasonable jury could also infer that Mason failed to notify Ryther of his alleged deficiencies for fear that he might correct them, eleven or that Mason treated Ryther as “an incompetent” because she harbored an age-based animus against him. See Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. In sum, a reasonable jury could infer that Mason had made a decision to terminate Ryther before the one thousand nine hundred ninety Gallup survey was conducted.

D. Ryther’s Claims that KARE eleven Had a Corporate Atmosphere Unfavorable to Older Employees

The district court relied on several portions of the record in holding that Ryther’s evidence of a corporate atmosphere unfavorable toward older employees could reasonably support the jury’s inference that Ryther was the subject of age discrimination. KARE eleven contends this evidence is insufficient, noting that statements made by employees not involved in Ryther’s non-renewal and stray remarks in the workplace do not give rise to a reasonable inference of discrimination. Not only is KARE 11’s reduction of this evidence to a few “stray remarks” factually incorrect, but, more importantly, such evidence can, if sufficient together with other evidence of excuse, support a reasonable inference of age discrimination. As the Supreme Court stated in McDonnell Douglas:

Other evidence that may be relevant to any displaying of preposition includes facts as to the [employer’s] ․ general policy and practice with respect to [older persons’] employment. On the latter point, statistics as to [defendant’s] employment policy and practice may be helpful to a determination of whether [its] refusal to rehire [plaintiff] conformed to a general pattern of discrimination against [older employees].

411 U.S. at 804-05, ninety three S.Ct. at one thousand eight hundred twenty five (footnote and citations omitted).

Albeit Ryther did not present his case in the form of statistical evidence, he did suggest testimony suggesting KARE 11’s deeds “conformed to a general pattern of discrimination” against older employees. Id. at 805, ninety three S.Ct. at 1825. This evidence included: Ryther’s testimony that he was criticized for the bags under his eyes; Mason’s testimony that she once considered permitting Ryther to wear glasses because she felt they might help cover them; testimony that several older employees were abruptly given poor spectacle ratings and compelled to choose inbetween early retirement and demotions; testimony that others in the sports department made cutting remarks about Ryther’s age, calling him an “old fart,” an “old man,” and telling he was “too old to be on the air,” and “had no business being in the industry any more for his age”; testimony that Shaver and Mason had frequent discussions about Ryther; and testimony that Shaver complained about Ryther to Mason on ostensibly age-related grounds. In the latter connection, the following excerpt from the testimony of Edward Villaume, a former sports department intern, is illuminating:

Q: Did you ever hear Randy Shaver make comments about Tom’s age?

Q: And what comments did you hear Randy make about Tom’s age?

A: Randy Shaver called Tom Ryther an old man, an old fart, and said he was too old to be on the air.

Q: Did you hear Jeff Passolt make any comments about Tom’s age?

Q: And what comments did you hear Jeff Passolt make about Tom’s age?

A: That Tom was an old man. He called him too old to be on the air, couldn’t figure out why Randy and himself, Jeff, were not number one, and that Tom had no business being in the industry any more for his age, called him an old fart as well.

Q: Did you hear Randy Shaver make his comments on more than one occasion?

Q: Approximately how many times did you hear Randy Shaver make those comments?

A: I would say approximately ten or more.

Q: Did you hear Jeff Passolt make those comments on more than one occasion?

Q: And approximately how many times did Jeff Passolt make those comments?

A: Somewhere around ten. Not as often as Randy.

Q: Did you ever hear Dave Levine, or Levine, make comments about Tom Ryther’s age?

A: Yes, I did. Dave would often chime right in with Randy and Jeff, or would make a comment on his own about Tom’s age.

Q: Had you ever heard Randy Shaver complain to Janet Mason in your presence?

Q: Can you tell us about what was said on that occasion when you were present when Randy complained to Janet Mason?

A: Randy had said to Janet that Tom was never around any more, that he was on the phone, and that he just wasn’t able to take hold of the fresh computer system and couldn’t treat the, kind of the newer technology.

Q: Did you ever hear any other staff members make comments about Tom’s age?

Q: And who was that?

A: Brian Singer, who was a camera man, had mentioned that more than once, and also had mentioned the fact that he could not understand how Tom was still in the business and why Randy and Jeff were not the number one anchor position there in the sports department.

KARE eleven argues that the statements referenced in this testimony were not those of persons responsible for the decision not to renew Ryther’s contract. To the extent that these statements were made outside the presence of the decisionmakers, KARE eleven is correct that they do not, standing alone, raise an inference of discrimination. Compare Frieze, nine hundred fifty F.2d at 541-42 (reversing denial of defendant’s movement for JNOV) with Morgan v. Arkansas Gazette, eight hundred ninety seven F.2d 945, 950-51 (8th Cir.1990) (affirming denial of defendant’s motility for JNOV). The evidence also exposes, however, that Shaver and Mason had frequent discussions about Ryther, and that they discussed Ryther’s capability to “grasp” some of the “newer” developments at the station. Furthermore, other evidence shows that Mason was generally responsive to Shaver’s ideas and requests, including his request that Ryther be taken off Prep Sports Extra. The jury could thus reasonably infer that Mason formed her judgment about Ryther on the basis of the discriminatory comments frequently made by Shaver, Passolt, Levine, and Singer, and acted on them by terminating him.

KARE eleven dismisses the testimony of three former KARE eleven employees that the station was systematically ridding itself of older employees because those employees were dissimilarly situated and because “ ‘individual employees’ opinions of deeds taken by their employer, ․ in themselves, are insufficient to support [Ryther’s] argument that his age was a determining factor in his discharge.’ ” Appellants’ Br. at thirty five (quoting Morgan, eight hundred ninety seven F.2d at nine hundred fifty (alteration ours)). Twelve As to KARE 11’s reliance on Morgan, we think Judge John R. Gibson’s opinion for this Court in Morgan supports our conclusion:

Much of the testimony recited above can be described as no more than individual employees’ opinions of deeds taken by their employer, which, in themselves, are insufficient to support Morgan’s argument that his age was a determining factor in his discharge. There was, however, evidence that, during Tinker’s administration, a pattern of employees over the age of forty leaving the circulation department and being substituted by junior employees developed. As we observed in MacDissi v. Valmont Industries, Inc., eight hundred fifty six F.2d one thousand fifty four (8th Cir.1988), in a similar context, “[t]his fact is certainly not conclusive evidence of age discrimination in itself, but it is surely the kind of fact which could cause a reasonable trier of fact to raise an eyebrow, and proceed to assess the employer’s explanation for this outcome.” Id. at 1058.

897 F.2d at 950-51 (emphasis added) (footnote omitted). The Morgan court went on to conclude that “additional threads of evidence which can be gleaned from the record,” including a reference to a former employer as an “old ‘fuddyduddy’ [who was] not wise enough to help” his department, and one employee’s “observation of a trend away from older, more experienced employees toward junior ones,” “support[ed] a finding that age was a determining factor in the decision to fire” the plaintiff. Id. at 951. Thus, while the statements of sports department employees are not, “in themselves,” sufficient to uphold the district court, those statements were relevant to the jury and, together with other evidence of preposition, such as a “trend” toward junior employees, and the elements of the prima facie case, support a reasonable inference of age discrimination.

The dissent argues that the articulation of a nondiscriminatory reason (i.e., Ryther’s low ratings from the market research, which allegedly demonstrate that he performed his job unsatisfactorily) ruins one of the elements of the prima facie case. This is wrong for several reasons. Very first, KARE eleven has never contended on appeal that Ryther failed to make a prima facie case; 2nd, in determining whether KARE eleven is entitled to a judgment as a matter of law, it is incumbent upon the trial court and the judges of this court to give the benefit of all favorable inferences to Ryther, who is the verdict holder; third, a trier of fact, when considering all of the evidence could reasonably find that the market research and the low rating of KARE 11’s sports department were based upon KARE 11’s own admission that it did not promote sports (and that “sports was relatively unimportant”); in addition, the record contains evidence, which the jury could reasonably believe, that the one thousand nine hundred ninety Gallup Survey, upon which Mason and Brook said they specifically relied in making the decision not to renew Ryther’s contract, was biased against Ryther; fourth, notwithstanding the earlier market research, KARE eleven as late as one thousand nine hundred ninety announced that Ryther performed his job in a “commendable” way and that his “total job responsibilities are met;” fifth, notwithstanding the earlier market research, Ryther’s contract was renewed three times with substantial raises.

Clearly, under the state of this record, whether Ryther was in fact performing his job satisfactorily and whether his spectacle met the reasonable expectations of KARE eleven was a question of fact for the jury.

In summary, the record as a entire supports a reasonable inference that age, and not some other factor, motivated KARE 11’s decision not to renew Ryther’s contract. The plaintiff produced breathtaking evidence as to the elements of a prima facie case, thirteen and strong evidence of pretextuality, which, when considered with Ryther’s work environment’s indications of age-based animus, clearly provide sufficient evidence as a matter of law to permit the trier of fact to find intentional discrimination. If this evidence is not sufficient for the plaintiff’s case to be submitted to a jury, it is difficult to hypothecate what evidence may ever achieve the threshold standard set forward by Burdine and Hicks. And, as the experienced district court judge stated, “[i]t is clear that the jury believed Ryther’s evidence and did not believe defendants’ proffered explanation.” Ryther, eight hundred sixty four F.Supp. at 1517.

In the alternative, KARE eleven requests a fresh trial. KARE eleven asserts it was prejudicial error to admit unconnected evidence and that the jury was given inaccurate and confusing instructions. We review both the district court’s admission of the evidence, O’Dell v. Hercules, Inc., nine hundred four F.2d 1194, one thousand two hundred (8th Cir.1990), and its choice of instructions, Resolution Trust Corp. v. Eason, seventeen F.3d 1126, one thousand one hundred thirty two (8th Cir.1994), for clear manhandles of discretion.

A. The Evidentiary Rulings

KARE eleven seeks a fresh trial on the basis of the district court’s evidentiary rulings. In particular, KARE eleven challenges the admission of evidence concerning settlement agreements, “stray remarks,” and anecdotal stories of other individuals, all of which, it asserts, were unconnected to KARE 11’s decision to terminate Ryther.

A fresh trial based on evidentiary rulings is suitable only when the challenged rulings were “so prejudicial as to require a fresh trial which would be likely to produce a different result.” O’Dell, nine hundred four F.2d at 1200. For the reasons stated by the district court, Ryther, eight hundred sixty four F.Supp. at 1523-25, we do not find that to be the case here.

B. The Jury Instructions

A party is entitled to an instruction which accurately states the law and is supported by the evidence. See, e.g., EEOC v. Atlantic Community Sch. Dist., eight hundred seventy nine F.2d 434, four hundred thirty six (8th Cir.1989). The jury instructions below adhered to the Hicks standard. See Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. Fourteen

KARE eleven asserts that these instructions failed to make clear that the jurors must find intentional age discrimination in order to come back a verdict in Ryther’s favor. We disagree. The instructions acknowledged KARE 11’s proffered explanation for its decision and stated that Ryther was required to prove that its explanation was “merely a excuse or cover-up for intentional age discrimination.” We cannot say the court manhandled its discretion in failing to instruct the jury otherwise. Fifteen

KARE eleven also asks the Court to switch sides the jury’s finding of willfulness and to vacate its corresponding award. The station suggests a finding that it was negligent or aware of the ADEA is insufficient, in and of itself, to support a finding of deliberate discrimination, and urges that the only evidence of willfulness here is testimony that KARE eleven had anti-discrimination employment policies and had instructed managers concerning how to execute those policies.

The Supreme Court has stated that a disturbance of section 7(b) of the ADEA, twenty nine U.S.C. § 626(b), is intentional “ ‘if the employer knew or showcased reckless disregard for the matter of whether its conduct was prohibited by the ADEA.’ ” Hazen Paper Co. v. Biggins, five hundred seven U.S. 604, 614, one hundred thirteen S.Ct. 1701, 1708, one hundred twenty three L.Ed.2d three hundred thirty eight (1993) (quoting Trans World Airlines v. Thurston, four hundred sixty nine U.S. 111, 126, one hundred five S.Ct. 613, 624, eighty three L.Ed.2d five hundred twenty three (1985) (internal quotation marks and ellipsis omitted in original)). Upon review, the issue is whether a rational jury could have concluded KARE 11’s conduct met this standard. Glover v. McDonnell Douglas Corp., twelve F.3d 845, eight hundred forty eight (8th Cir.1994), cert. denied, five hundred eleven U.S. 1070, one hundred fourteen S.Ct. 1647, one hundred twenty eight L.Ed.2d three hundred sixty six (1994).

KARE eleven is correct to suggest that conduct that is “ ‘merely negligent’ ” will not support a finding of willfulness. Biggins, five hundred seven U.S. at 615, one hundred thirteen S.Ct. at one thousand seven hundred eight (quoting McLaughlin v. Richland Shoe Co., four hundred eighty six U.S. 128, 133, one hundred eight S.Ct. 1677, 1681, one hundred L.Ed.2d one hundred fifteen (1988)). It is also well established that our concern is not simply whether the employer acted voluntarily, but whether it consciously violated the ADEA. See Brown v. Stites Concrete, Inc., nine hundred ninety four F.2d 553, five hundred sixty (8th Cir.1993) (en banc); MacDissi v. Valmont Indus., Inc., eight hundred fifty six F.2d 1054, one thousand sixty one (8th Cir.1988). Thus, the Supreme Court has declined to hold “that a disturbance of the Act is ‘willful’ if the employer simply knew of the potential applicability of the ADEA.” Thurston, four hundred sixty nine U.S. at 127, one hundred five S.Ct. at 624.

That said, the employee need not, to prove willfulness, display “that the employer’s conduct was shocking, or provide direct evidence of the employer’s motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision.” Biggins, five hundred seven U.S. at 617, one hundred thirteen S.Ct. at 1710. And, as the Biggins Court emphasized, “[i]t would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, skill alone does not suffice for liquidated damages.” Id.

Ample evidence supports the jury’s finding that KARE eleven “more likely [knew] its conduct to be illegal” here. The record exposes that KARE eleven had equal employment chance (“EEO”) policies that clearly forbade age-based discrimination, and that its managers received EEO and affirmative act training. Other testimony showcased that all of KARE 11’s managers were instructed to prevent age discrimination. KARE 11’s directives spelled out that, before terminating an older employee, the manager should document the difficulties and suggest the employee help and retraining. Yet Ryther received no such assistance or offers.

This is not, however, the only evidence suggesting KARE eleven acted willfully. As noted above, Ryther testified that Mason repeatedly treated him “as however he couldn’t seem to do anything right,” and that he “went from being a valued member of the news staff sports department to almost a-in Janet Mason’s eyes, as an incompetent.” Such evidence of repeated harassment may, together with other evidence, support a finding of willfulness. See Kelewae v. Jim Meagher Chevrolet, Inc., nine hundred fifty two F.2d 1052, one thousand fifty four (8th Cir.1992) (per curiam) (repeated incidents of harassment about the quality of employee’s work in conjunction with suggestions that he retire supports finding of wilfulness). Here, further evidence showcased that Mason and the others responsible made the decision not to renew Ryther’s contract prior to commissioning the one thousand nine hundred ninety Gallup Survey, but concealed that decision from him, perhaps because they did not want to give him a chance to improve his spectacle. This evidence, too, supports a finding of willfulness. See Tolan v. Levi Strauss & Co., eight hundred sixty seven F.2d 467, four hundred seventy one (8th Cir.1989) (“Evidence of concealment may display the employer knew its conduct violated the ADEA.”).

As the district court stated, “[i]t is clear that defendants were more than merely aware of the ADEA statute,” and “[t]his is not a case where the employer incorrectly, but in good faith, believed that the statute permitted a particular age-based decision.” Ryther, eight hundred sixty four F.Supp. at 1520. The entirety of the evidence suggests they knew they were violating the law in terminating Ryther on the basis of his age. At a minimum, it suggests those responsible were recklessly indifferent to the ADEA’s requirements.

The judgment of the district court is therefore affirmed.

I respectfully dissent. I conclude that KARE eleven is entitled to judgment as a matter of law or, at a minimum, a fresh trial.

As the court explains, when a discrimination case is submitted to the jury, the presumption created by plaintiff’s prima facie case is no longer relevant. But if the plaintiff has no direct evidence of age discrimination, as in this case, the elements of the prima facie case remain relevant, for they may, along with proof of excuse, please plaintiff’s ultimate cargo to prove age discrimination. Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749. Thus, in submitting this case, the district court instructed the jury on four elements of Ryther’s prima facie case. See footnote 14, supra at p. 1087.

There is no rigid formula defining the elements of a prima facie case of discrimination. See United States Postal Serv. Bd. v. Aikens, four hundred sixty U.S. 711, 715, one hundred three S.Ct. 1478, 1481, seventy five L.Ed.2d four hundred three (1983). The elements necessarily vary depending upon, for example, the type of adverse employment activity that is challenged and the nature of the alleged discrimination. But in every case, those elements must be sufficient to raise a valid inference of unlawful discrimination. See Furnco Constr. Corp. v. Waters, four hundred thirty eight U.S. 567, 575-77, ninety eight S.Ct. 2943, 2948-50, fifty seven L.Ed.2d nine hundred fifty seven (1978). Here, the district court in my view failed to decently define the elements of Ryther’s prima facie case. To explain why, I must review some undisputed facts concerning Ryther’s employment history with KARE 11.

Ryther was very first hired as Channel 11’s lead sportscaster in 1979, when he was forty one years old and the station was under different ownership. Ryther was given a three-year motionless term contract at an initial annual salary of $55,000. The contract was renewed in 1982. Gannett/KARE eleven acquired Channel eleven in 1983. KARE eleven renewed Ryther’s contract for extra three-year terms in one thousand nine hundred eighty five and 1988. During the final year of the one thousand nine hundred eighty eight contract, Ryther was paid an annual salary of $160,000.

Television broadcasting stations commonly conduct periodic market research to survey the popularity of both the station and its on-air “personalities” in the local market. In December 1981, the independent research rock hard of Atkinson-Farris Communications surveyed the Twin Cities television audience for Channel 11. The researchers reported that Channel eleven was a distant third in “rating” among the three Twin Cities network affiliates. One Regarding the popularity of Ryther, Atkinson-Farris reported:

The situation for Tom Ryther is particularly unfortunate. Very first, his overall [Quality] Score is not extraordinaire (17), but more significant, viewers of [Channel 11] are not even enthusiastic. A Quality Score of eighteen from supporters of a personality’s own station is enormously low.

Inbetween May one thousand nine hundred eighty six and October 1988, Gannett’s in-house research organization conducted a number of “Tracking Studies” of the Twin Cities market. These studies showcased Ryther’s market influence and capability to attract viewers holding sustained, well below KARE 11’s newly-hired news and weather anchors. The studies also exposed that Mark Rosen, the fresh lead sportscaster for arch-rival WCCO, had already passed Ryther in these popularity measures.

In 1989, the Atkinson research hard again surveyed the Twin Cities television audience for KARE 11. It found that KARE 11’s news programs had made “massive progress” since 1981, pulling even with WCCO in overall customer preference, well ahead of the third network affiliate. It found that KARE 11’s lead news anchor had “the broadest base of support among newscasters in the market,” and that its weather anchor was “the on-air person with the broadest appeal and greatest pulling power.” However, it characterized KARE eleven sports as “the softest part of your team.” It found that Ryther had “virtually the same ratings he had in our one thousand nine hundred eighty one project,” while Mark Rosen “has been able to come into the market during that time and pass Ryther.” The report also noted that sports was relatively unimportant to viewers in choosing a local news program; only five percent of the persons surveyed listed sports as a reason for their newscast preferences.

In 1990, KARE eleven retained the Gallup organization to again survey the Twin Cities market. The Gallup survey again found that sports was a “low interest” facet of KARE 11’s broadcasts, with a value of six percent (compared, for example, to weather’s seventy six percent). Gallup also reported that Ryther had relatively high viewer recognition (76 percent, compared to eighty one percent for Mark Rosen), but low net influence (28 percent, compared to forty five percent for Rosen). KARE 11’s other sportscasters, Jeff Passolt and Randy Shaver, had low recognition and low net influence. Because a widely recognized personality should attract more viewers, Gallup’s accomplished, Dr. Frank Newport, testified that Ryther’s scores-high recognition but low net impact-placed him in Gallup’s “penalty box.” The Gallup report concluded:

The data suggest that Tom Ryther is not a strongly positive factor for KARE. The sportscaster position is the only front four role which is not packed by a very strong player for KARE. Ryther himself does below average on many of the key indicators created in this research: he underperforms based on where we think he should be based on his recognition and years in market.

Passolt, on the other forearm, is no superstar either. His overall net influence, in fact, is toughly the same as Ryther’s. The plus for Passolt would show up to be that he has a lower recognition, and thus is now performing at a higher level rel[ative] to where we think that he should be. Thus, it is our opinion that Passolt has the higher potential for the station.

At any rate, a switch in sportscaster would show up to have a relatively low down-side risk for the station as Ryther is no starlet as is.

Shortly after receiving the Gallup report in the fall of 1990, KARE eleven determined not to renew Ryther’s contract in July 1991. However, the station also determined to leave Ryther in place until his three-year contract expired in July 1991. Two Because KARE eleven permitted Ryther to accomplish his three-year contract term, the refusal to suggest him a fresh contract in one thousand nine hundred ninety one was, in essence, a refusal to hire. Thus, no matter how favorable Ryther’s internal spectacle reviews at KARE eleven had been in the past, the relevant question in July one thousand nine hundred ninety one was whether he was qualified to be hired (or rehired) as the lead sportscaster at a Twin Cities television station at a salary of $160,000 per year.

The district court’s jury instruction took no account of this critical aspect of the case. Far worse, the instruction quoted in footnote fourteen significantly misstated the elements of Ryther’s prima facie case when it instructed the jury to find whether, “Second, plaintiff’s job spectacle was satisfactory,” and “Third, plaintiff was terminated from his job when his contract was not renewed.” This instruction told the jury to disregard the fundamental difference inbetween the decision whether to rehire an employee whose fixed-term contract has expired, and the decision whether to terminate an employee who has worked without the ensured but limited security of a fixed-term contract.

The instructions also overlooked another essential aspect of the evidence in this case that impacts upon the elements of a prima facie case. The one thousand nine hundred eighty nine and one thousand nine hundred ninety research displayed that (i) KARE eleven had gained substantial overall ratings despite a feeble sports anchor, and (ii) sports attracts relatively few Twin Cities viewers. Following Ryther’s non-renewal, his duties were spread among the remaining KARE eleven sportscasters; no one was added to the KARE eleven sports team. The independent market research justified KARE 11’s decision to reduce this part of its newsroom force by not renewing an underperforming, very compensated lead sportscaster and redistributing his job among the remaining staff. Compare Thomure v. Phillips Furniture Co., thirty F.3d 1020, one thousand twenty four (8th Cir.1994), cert. denied, five hundred thirteen U.S. 1191, one hundred fifteen S.Ct. 1255, one hundred thirty one L.Ed.2d one hundred thirty five (1995). Thus, the case had evidentiary elements of a reduction-in-force, and the jury should have been instructed accordingly.

In my view, this was prejudicial instruction error. Given ten years of market research showcasing that Ryther lacked the capability to attract local viewers, no Twin Cities station would have considered him qualified for his former position and salary. Three Thus, the independent market research gave KARE eleven a powerful, objective business reason for not renewing Ryther’s contract that, in addition, refuted an essential element of his prima facie case. Compare Hayman v. National Acad. of Sciences, twenty three F.3d 535, five hundred thirty eight (D.C.Cir.1994); Craft v. Metromedia, Inc., seven hundred sixty six F.2d 1205, one thousand two hundred sixteen (8th Cir.1985), cert. denied, four hundred seventy five U.S. 1058, one hundred six S.Ct. 1285, eighty nine L.Ed.2d five hundred ninety two (1986). Four And this research was disinterested, objective evidence gathered and suggested at trial by third party professionals. See Dace v. ACF Indus., Inc., seven hundred twenty two F.2d 374, three hundred seventy seven n. Six (8th Cir.1983).

In these circumstances, Ryther’s purported preposition evidence failed to create a submissible case of age discrimination. When the employer’s objective evidence not only tends to establish a legitimate, nondiscriminatory reason for the adverse employment act, but also effectively refutes the plaintiff’s prima facie case, I think it very unlikely that excuse evidence can support a reasonable inference of age discrimination. Evidence of excuse “is relevant only to the extent it contributes to an inference that [KARE 11] intentionally discriminated against [Ryther] because of his age. See Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749.” Nelson v. Boatmen’s Bancshares, Inc., twenty six F.3d 796, eight hundred one (8th Cir.1994). Five

To summarize, ten years of independent market research established that Ryther was the overpaid, underperforming anchor of the least significant segment of KARE 11’s news team. Gallup recommended a switch, and KARE eleven acted on that recommendation. “[T]he issue is not whether the reason articulated by the employer warranted the discharge, but whether the employer acted for a nondiscriminatory reason.” Halsell v. Kimberly-Clark Corp., six hundred eighty three F.2d 285, two hundred ninety two (8th Cir.1982), cert. denied, four hundred fifty nine U.S. 1205, one hundred three S.Ct. 1194, seventy five L.Ed.2d four hundred thirty eight (1983). Albeit Ryther obviously persuaded the jury that KARE eleven treated him unfairly, I conclude he did not prove intentional age discrimination. Therefore, this case presents the same situation we faced in Barber v. American Airlines, Inc., seven hundred ninety one F.2d 658, six hundred sixty one (8th Cir.), cert. denied, four hundred seventy nine U.S. 885, one hundred seven S.Ct. 278, ninety three L.Ed.2d two hundred fifty four (1986):

We have cautiously read every page of the testimony at this trial, and we are persuaded that this stringent standard [for setting aside a jury verdict] has been met. The jury could rationally have believed that plaintiffs ought in good conscience to have been permitted to stay in Little Rock ․ but there is absolutely no substantial evidence in this record that would justify attributing American’s deeds to plaintiffs’ age.

Like the panel in Barber, I would hold that the district court erred in denying KARE 11’s post-trial mobility for judgment as a matter of law. At a minimum, I believe that the district court’s prejudicial instruction errors warrant a fresh trial. Six For these reasons, I respectfully dissent.

1. Underperformance of any employee may serve as a decent and nondiscriminatory reason for discharge or for nonrenewal of an employment contract. If an employer’s decision is made on objective, reliable market surveys, it is clearly a policy decision belonging exclusively to the employer. However, if the stated reason is shown by substantial evidence to be pretextual, which is what the present case concerns, then, depending on the overall evidence, the jury may be permitted to consider whether the employer’s stated reason is the actual reason for the employer’s activity.

Two. The dissent urges that, since there is no dispute as to the existence of the market research showcasing Ryther’s static spectacle, KARE 11’s reliance upon it is a finish defense to Ryther’s case. We respectfully submit that this is faulty reasoning; it avoids the issue of preposition. The issue is not whether the research is undisputed, but whether KARE 11’s reliance upon it as a reason for Ryther’s termination was pretextual, which in turn depends upon whether Ryther has produced sufficient evidence from which a jury could reasonably find that the market research was not the real reason KARE eleven refused to hire Ryther for another contractual term as Sports Director. It is significant to emphasize that we do not hold that this is what KARE eleven did; our inquiry is only to determine whether reasonable boys and women of a jury had before them substantial evidence which would permit them to reject the reason KARE eleven suggested, i.e., market research, as one masking age discrimination. The factfinder must then determine from all of the evidence that the real reason was intentional discrimination.

Trio. It merits emphasis that it is for the jury to draw the inferences from the overall evidence, not judges of this court. This is especially true where conflicting inferences may be drawn from the overall evidence. Only where there is not substantial evidence, that is, no reasonable evidence existing to showcase pretextuality as to the reason given by the employer, may the trial court or this court find as a matter of law that the employer’s proffered non-discriminatory reason was not rebutted. See, e.g., Nelson v. J.C. Penney, seventy five F.3d 343, 345-46 (8th Cir.), reh’g en banc denied, seventy nine F.3d eighty four (1996). For example, if a plaintiff claimed that the reason for discharge was pretextual by showcasing there were reasons other than age, such evidence of preposition would not, as a matter of law, be sufficient evidence of preposition masking age-based animus.

Four. The plaintiff’s presentation of a prima facie case creates a legal presumption of unlawful age discrimination. Burdine, four hundred fifty U.S. at two hundred fifty four & n. 7, one hundred one S.Ct. at one thousand ninety four & n. 7. This presumption places an obligation upon the employer (in order to avoid a judgment against it as a matter of law) to produce evidence of a legitimate, nondiscriminatory reason for the plaintiff’s discharge. Id. If the employer carries this cargo, the legal presumption of unlawful age discrimination “drops out of the picture,” and the plaintiff is no longer entitled to judgment as a matter of law. Hicks, five hundred nine U.S. at 510, one hundred thirteen S.Ct. at 2749; Burdine, four hundred fifty U.S. at 255, one hundred one S.Ct. at 1094. At this point, the plaintiff, who at all times retains the cargo of persuading the factfinder that he was the subject of intentional discrimination, may still succeed in proving his or her case, in one of two ways: “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showcasing that the employer’s proffered explanation is unworthy of credence.” Burdine, four hundred fifty U.S. at 256, one hundred one S.Ct. at 1095. The Supreme Court clarified this stage of the litigation in Hicks:The defendant’s “production” (whatever its persuasive effect) having been made, the trier of fact proceeds to the ultimate question: whether plaintiff has proven “that the defendant intentionally discriminated against [him]” because of his [age], [Burdine, four hundred fifty U.S. at 253, one hundred one S.Ct. at 1093]. The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to display intentional discrimination. Thus, rejection of the defendant’s proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, “[n]o extra proof of discrimination is required,” [Hicks v. St. Mary’s Honor Center,] nine hundred seventy F.2d, [487] at four hundred ninety three [8th Cir.1992] (emphasis added).509 U.S. at 511, one hundred thirteen S.Ct. at two thousand seven hundred forty nine (footnote omitted). Albeit the prima facie case, at this point, no longer creates a legal presumption of unlawful discrimination, the elements of the prima facie case, if accompanied by evidence of excuse and disbelief of defendant’s proffered explanation, permit the jury to find for the plaintiff. Id. This is not to say that, for the plaintiff to succeed, simply proving preposition is enough. As the Hicks Court explained, the plaintiff must still persuade the jury, from all the facts and circumstances, that the employment decision was based upon intentional discrimination. Five hundred nine U.S. at five hundred ten n. Four, one hundred thirteen S.Ct. at two thousand seven hundred forty nine n. Four.

Five. The dissent urges (without citation of authority) that there is a fundamental error (affecting the jury instructions and the elements of the prima facie case) in the district court’s failure to highlight that Ryther was not terminated by KARE 11, but rather was not rehired as an employee whose fixed-term contract had expired. We are totally unaware of any legal difference in evaluating either situation in an employment discrimination case. The jury was certainly apprised of the facts of the case, and clearly understood that the issue involved, the claim of age discrimination, arose from KARE 11’s refusal to renew Ryther’s contract. The uniform instructions suggested for use by federal courts refer to the terms discharge, refusal to hire, refusal to renew contract, etc., as interchangeable. See three Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions: Civil § 106.03 (4th Ed. Supp.1995). The same is true of the Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit § Five.11 (1995). The ADEA uses the terms interchangeably, specifically providing:It shall be unlawful for an employer-(1) to fail or turn down to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;․29 U.S.C. § 623(a). In brief, the two are generally equated. See also Lee v. Rapid City Area Sch. Dist., nine hundred eighty one F.2d 316, three hundred twenty five (8th Cir.1992) (en banc) (Loken, J., dissenting) (“Lee was discharged (nonrenewed),․”).

6. See United States Postal Serv. Bd. of Governors v. Aikens, four hundred sixty U.S. 711, 716, one hundred three S.Ct. 1478, 1482, seventy five L.Ed.2d four hundred three (1983) (“sensitive and difficult” issue of intentional discrimination will frequently be proven by circumstantial evidence of preposition, as “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes”); id. at seven hundred fourteen n. Three, one hundred three S.Ct. at one thousand four hundred eighty one n. Three (“As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence. The trier of fact should consider all the evidence, providing it whatever weight and credence it is worth.”); International Bhd. of Teamsters v. United States, four hundred thirty one U.S. 324, three hundred fifty eight n. 44, ninety seven S.Ct. 1843, 1866, fifty two L.Ed.2d three hundred ninety six (1977) (“[T]he McDonnell Douglas formula does not require direct proof of discrimination.”); McDonnell Douglas, four hundred eleven U.S. at 804-05, ninety three S.Ct. at 1825-26 (listing various types of circumstantial evidence as relevant to showcasing of excuse); Hicks, five hundred nine U.S. at 534, one hundred thirteen S.Ct. at two thousand seven hundred sixty two (1993) (Souter, J., dissenting) (describing “indirect proof” as “crucial” because “employers who discriminate are not likely to announce their discriminatory motive”); Price Waterhouse v. Hopkins, four hundred ninety U.S. 228, 273, one hundred nine S.Ct. 1775, 1803, one hundred four L.Ed.2d two hundred sixty eight (1989) (O’Connor, J., concurring in judgment) (emphasis in original) (noting that “requiring the plaintiff to prove that any one factor was the definitive cause of the decisionmakers’ act may be tantamount to announcing [anti-discrimination law] inapplicable to such decisions”); Nitschke v. McDonnell Douglas Corp., sixty eight F.3d 249, two hundred fifty one (8th Cir.1995) ( “An age-discrimination plaintiff may rely on either direct or circumstantial evidence to prove that he has been the victim of unlawful discrimination.”).

7. In addition to the evidence of poor sports promotion, the jury reasonably could have believed Ryther’s evidence that KARE 11’s newscast gained a following not because of its personnel, but because of its programming following and preceding the newscast. “Cheers,” for example, followed the Ten:00 p.m. newscast.

8. In 1988, Mason herself negotiated a fresh three-year contract with Ryther.

9. At the same time, Nash wrote in part about Randy Shaver and Jeff Passolt, Ryther’s eventual junior replacements:RANDY SHAVERHis continued improvement is primarily a matter of content. None of the airchecks I viewed featured work that was memorable or especially creative in any way. It was simply competent, animated sportscasting.JEFF PASSOLTThe same criticisms apply to Jeff. His delivery is relaxed and professional. It is not exceptional, primarily because none of the stuff I witnessed featured any especially creative content.Id. at E6-E7 (emphasis added).

Ten. Of course, the inference of unlawful discrimination very first arises from the prima facie case itself, which “serves an significant function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection.” Burdine, four hundred fifty U.S. at 253-54, one hundred one S.Ct. at 1094; see id. at 258, one hundred one S.Ct. at 1096; Furnco Constr. Corp. v. Waters, four hundred thirty eight U.S. 567, 577, ninety eight S.Ct. 2943, 2949, fifty seven L.Ed.2d nine hundred fifty seven (1978). The inference of unlawful discrimination arises, a fortiori, however, from the rejection of defendant’s explanation of its deeds, as the jury’s disbelief of defendant’s reasons “eliminates” even more “nondiscriminatory reasons for the plaintiff’s rejection.” Burdine, four hundred fifty U.S. at 254, one hundred one S.Ct. at 1094.

11. In this regard, Ryther’s claim paralleled the proof of pretextuality plaintiff produced in our latest case of Nelson v. Boatmen’s Bancshares, Inc., twenty six F.3d 796, eight hundred two (8th Cir.1994):Because [defendant’s] April 27, 1989, memo shows he had already determined that [plaintiff] should be terminated and given early retirement and because [defendant] did not in fact permit [plaintiff] to correct his work spectacle, the jury could reasonably infer that [defendant] was hiding a motivation to fire Nelson because of his age.

12. The district court more decently observed:Eventually, there was evidence that defendants compelled other older employees to choose inbetween demotions or early retirement. Several of the older employees were all of a sudden given poor spectacle reviews after receiving years of superior ratings. Defendants contend that evidence concerning the older employees was not relevant because they were not on-air talent and, therefore, were not similarly situated to Ryther. Albeit the situations of the older employees and Ryther differ in some respects, the court finds there were enough similarities to render the evidence relevant and admissible. The court also concludes that a jury could reasonably find that defendants intentionally built poor spectacle cases against older employees, including Ryther.Ryther, eight hundred sixty four F.Supp. at 1519.

13. There exists no magical language in instructing a jury as to the elements of a prima facie case in a given situation. See U.S. Postal Serv. Bd. of Governors v. Aikens, four hundred sixty U.S. 711, 715, one hundred three S.Ct. 1478, 1482, seventy five L.Ed.2d four hundred three (1983) (internal quotations omitted) (“The prima facie case method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common practice as it bears on the critical question of discrimination.”) This court, following the established guidelines set down by the Supreme Court, has repeatedly set forward these elements in substantially the same terms as those used in three Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions: Civil § 106.03 (4th Ed.1987). See, e.g., Clements v. General Accident Ins. Co. of Am., eight hundred twenty one F.2d 489, four hundred ninety one (8th Cir.1987). This same language was adopted by Judge Doty in providing the instructions in the present case. In a case written by Judge Hansen on which Judge Loken sat, the court reiterated that:Thus, to make a prima facie case of age discrimination, Nelson must display that 1) he was within the protected age group, Two) that he was performing his job at a level that met his employer’s legitimate expectations, Three) he was discharged, and Four) his employer attempted to substitute him.Nelson, twenty six F.3d at eight hundred (internal quotations omitted).

14. The court’s instruction cautiously told the jury:Plaintiff is not required to produce direct evidence of unlawful motive. Discrimination, if it exists, is seldom admitted, but is a fact which you may infer from the existence of other facts.In determining whether plaintiff’s age was a determining factor in defendants’ decision, you should very first consider whether plaintiff has established the following facts by a preponderance of the evidence.Very first, plaintiff was within the protected age group, that is, he was forty years of age or over.2nd, plaintiff’s job spectacle was satisfactory.Third, plaintiff was terminated from his job when his contract was not renewed.Fourth, a junior person with similar credentials substituted plaintiff.If plaintiff has failed to prove one or more of these facts, you must find for the defendants.If plaintiff has proven these facts, he has suggested evidence from which you could conclude that defendants discriminated against him because of his age.If you find that plaintiff has proven these facts, you must consider whether defendants have produced evidence of a reason, other than age, for not renewing plaintiff’s contract.Defendants have suggested evidence of legitimate nondiscriminatory reasons for their deeds. Therefore, plaintiff must prove by a preponderance of the evidence that the reasons suggested by defendants are merely a excuse or cover-up for intentional age discrimination.You should not consider whether the reasons given by defendants constitute a good or bad business decision. You may not comeback a verdict for plaintiff just because you may disagree with defendants’ decision or believe it was harsh or unreasonable.Furthermore, as Judge Doty pointed out, these instructions substantially conform with three Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions: Civil § 106.03 (4th Ed.1987). Ryther, eight hundred sixty four F.Supp. at 1521.

15. The dissent’s challenge to the sufficiency of the district court’s instruction is somewhat puzzling. Assuming, for the sake of argument, the instructions were deficient in failing to mention the various evidentiary nuances suggested by the dissent, these evidentiary concerns were neither the basis of KARE 11’s protestation in the district court nor, for that matter, raised on appeal. In addressing the issue here, the dissent disregards the admonition of Fed.R.Civ.P. 51, which requires a specific protestation to instructions to preserve such a claim on appeal.Furthermore, at no stage of this litigation has KARE eleven claimed that this is a “reduction-in-force” case. Such a defense does not show up in KARE 11’s briefs, nor was the case pled or attempted in this manner in the district court. At the instruction conference, the only reference that was made to reducing the force was defense counsel’s protestation to the language in the court’s instruction that the plaintiff had to prove “a junior person with similar credentials was assigned to do the same work.” Defense counsel suggested it would be more adequate, rather than to use the word “assigned,” to instruct that “a junior person with similar credentials substituted Mr. Ryther.” Defense counsel emphasized that “replaced” was a neutral word. The court acquiesced in this request, there was no protestation by plaintiff’s counsel, and defense counsel approved the court’s switch in the instruction to read: “A junior person with similar credentials substituted plaintiff.” After this colloquy, defense counsel said that he did not have any other protestations. For the dissent now to argue that the jury should have been instructed about a reduction in force is factually inaccurate and irrelevant to the case. To suggest, in the absence of such an protestation at trial, that a fresh trial should now be given on the basis that the instructions were not technically correct, is indeed disturbing. See Anderson Marketing, Inc. v. Design House, Inc., seventy F.3d 1018, one thousand twenty (8th Cir.1995) (per curiam) (“It is a fundamental rule of federal appellate procedure that we may only pass on a district court’s ruling if a party challenges that ruling on appeal by raising the issue in its opening brief.”); id. (collecting cases); Fed. R.App. P. 28(a)(Two), (Four).Furthermore, as outlined in our opinion, the alleged evidentiary deficiencies raised by the dissent not only are without merit, but misconstrue the purpose behind the court’s instructions in a jury case. To suggest that a jury should be instructed on the argumentative details of evidence, in order better to understand a party’s theory of the case, totally disregards the role of the trial court in instructing the jury on the law governing their deliberations.It is not for the trial court, in instructing the jury, to emphasize the evidence favorable to one side over the other. This is especially true when the inferences to be drawn from the overall evidence are conflicting and could lead to different results. As Justice Frankfurter urged years ago, juries are not “too stupid to see the drift of evidence.” United States v. Johnson, three hundred nineteen U.S. 503, 519, sixty three S.Ct. 1233, 1241, eighty seven L.Ed. One thousand five hundred forty six (1943). Moreover, such a suggestion is totally out of order when a party does not request a specific instruction or object to the instructions given.

1. A station’s rating (number of viewers) is critical because advertising charges, and therefore revenues, depend upon rating.

Two. Amazingly, the court repeatedly draws adverse inferences from KARE 11’s delay in advising Ryther of its decision not to renew. Having decently concluded to honor its contractual commitment, KARE eleven would have been foolish, as well as insensitive, to advise this high-profile employee of its adverse decision before Spring 1991.

Three. The court’s concentrate on the fact that Ryther finished 2nd to Mark Rosen in Gallup’s examine of net influence on viewers reminds me of a Russian parable describing the Soviet press. After President Kennedy defeated Chairman Krushchev in a 100-yard dash, Pravda reported: “Our beloved Nikita finished a respectable 2nd place, while the American President was a dismal next-to-last.”

Four. At trial, KARE 11’s three decisionmakers consistently identified market research as the reason Ryther was not rehired. Janet Mason testified, “the primary information or device that we used in making that decision was the research.” Linda Rios Brook testified Ryther was not renewed “[o]n the basis of the research. That was the overriding reason.” Richard Modig testified, “Well, it was truly the research. I think the research, especially over a long period of time, was crystal clear.”

Five. A prime example of irrelevant preposition evidence are the scraps of newsroom backbiting related at length in the court’s opinion. To get through, television stations must concentrate on a personality’s capability to attract audience, not on his age or the bags under his eyes. One of the most beloved sportscasters today is the elderly Harry Caray, whose nationwide broadcasts of Chicago Cubs baseball games have helped make the perennially unsuccessful Cubs one of the most popular teams in the National League. Does the court earnestly believe that KARE eleven would have non-renewed a term contract with Harry Caray because some ambitious but unproven underling complained that he was an “old fart” who shouldn’t be on the air?

6. I agree with KARE eleven that the instruction quoted in footnote fourteen did not decently convey to the jury the Supreme Court’s teachings in Hicks. I note that the court does not approve that instruction, and I would discourage its use in future cases.

Ryther v

Ryther v. KARE 11, eight hundred sixty four F. Supp. One thousand five hundred ten (D. Minn. 1994)

864 F. Supp. One thousand five hundred ten (1994)

C. Thomas RYTHER, Plaintiff,

KARE 11, an NBC affiliate and a division of Combined Communications Corp., an Arizona corporation and Gannett Co., Inc., a Delaware corporation, Defendants.

United States District Court, D. Minnesota, Fourth Division.

September 13, 1994.

Thomas Tinkham, Karen Clauson Maki, and Dorsey & Whitney, Minneapolis, MN, for defendants.

ORDER

DOTY, District Judge.

This matter is before the court on defendants’ motions for judgment as a matter of law and, in the alternative, a fresh trial and a reduction of damages. Based on a review of the file, record and proceedings herein, the court denies defendants’ motions.

BACKGROUND

C. Thomas Ryther (“Ryther”) worked as a sports anchor at Channel eleven from December one thousand nine hundred seventy nine until July 1991, pursuant to a series of three year contracts. In 1988, Janet Mason became the vice president of news at KARE 11, which is possessed by Gannett. At that time, Ryther was the sports director and lead sports anchor. The sports department included Jeffrey Passolt (“Passolt”) and Randy Shaver (“Shaver”), both under age 40. Ryther appeared on the six o’clock and ten o’clock news and hosted a weekly display during the football season. Passolt did a sports feature on the five o’clock news and was a reporter and weekend anchor along with Shaver.

In 1988, KARE eleven assigned Passolt to host the weekly football demonstrate. The following year Linda Rios-Brook (“Brook”) was named the station manager at KARE 11. During 1989, Mason switched Ryther from the six o’clock news to a sports segment feature on the five o’clock news. Passolt became the sports anchor at six o’clock and Ryther continued to anchor the ten o’clock sports. Ryther worried that the loss of air time would adversely influence his visibility. In March 1990, Mason rated Ryther’s spectacle as “commendable,” the 2nd highest mark possible. Two months later, Mason named Shaver executive producer of sports, a title that belonged to Ryther under his contract. Shaver assumed many of Ryther’s organizational and planning duties. Ryther agreed to the switch based on Mason’s assurance that he would retain the right of final approval on all planning matters. However, according to Ryther, the promise was not honored and he was excluded by Mason and others from key planning decisions.

In June 1990, defendants hired the Gallup Organization (“Gallup”) to assess audience reaction to certain on-air personalities in the Twin Cities market. Gallup surveyed a random sample of viewers using a “Q score technology” and open-ended questions. The Q score technology consists of numerous choice questions concerning viewer recognition and approval of on-air personalities. The Q score is widely used in the media industry to demonstrate viewer attachment to a personality by measuring the percentage of viewers who recognize the person and the percentage of viewers who are strongly favorable or strongly unfavorable of that person. The information obtained from open-ended questions provides a more accomplish picture of what viewers think about key personalities.

KARE eleven directed Gallup to use the Q score technology to measure the strength of twenty five on-air personalities, including Ryther. The research results indicated that Ryther was well known in the market but his influence on viewers was less positive than the other lead anchors at KARE eleven and Mark Rosen (“Rosen”), the lead sports anchor at a challenging station. Ryther’s positive influence was slightly higher than that of Passolt who was not as well known in the market. KARE eleven also instructed Gallup to ask open-ended questions about ten local personalities, including the other lead anchors at KARE 11, Passolt and Rosen. [1] KARE eleven did not ask the viewers such questions about Ryther. After evaluating the viewer data, Gallup recommended switching the lead sportscasters at KARE eleven and suggested that Passolt may have more “potential.” According to defendants, the decision not to renew Ryther’s contract was made in August one thousand nine hundred ninety based on the results of the Gallup research. In the *1516 fall of 1990, Mason eliminated Ryther’s salary from the sports department budget but did not tell him of defendants’ decision.

In early 1991, Ryther discovered he was being excluded from promotions. Ryther asked Brook about the status of his contract and she referred him to Mason. On March 6, 1991, Mason told Ryther, then fifty three years old, that his contract would not be renewed when it expired at the end of July. Mason said that Ryther had failed in the Twin Cities market and explained that the decision not to renew his contract was based on the one thousand nine hundred ninety Gallup research. On July 16, 1991, Ryther held a press conference to announce he had filed an age discrimination claim with the Equal Employment Chance Commission. KARE eleven took Ryther off the air the same day but compensated him for the last two weeks of his contract. Ryther brought suit against defendants alleging defamation and age discrimination and retaliation in disturbance of federal and state law.

An eight day jury trial was held in September 1993. The ultimate issue in the case turned on whether a legitimate or an illegitimate set of considerations led to defendants’ decision not to renew Ryther’s contract. At the close of plaintiff’s case, defendants moved for judgment as a matter of law on all claims. The mobility was granted as to Ryther’s defamation claim but was otherwise denied. The remaining claims were submitted to the jury at the close of evidence. The jury returned a verdict for Ryther on his age discrimination claim and awarded $272,444.00 in back pay and $433,330.30 in front pay. The jury also found that defendants’ disturbance of the ADEA was voluntary. The jury found in favor of defendants on the retaliation claim.

Defendants now stir for judgment as a matter of law claiming that the court erred in not holding as a matter of law that Ryther failed to establish that age was a determining factor in the decision not to renew his contract and failed to prove willfulness. In the alternative, defendants stir for a fresh trial based on certain evidentiary rulings and certain jury instructions given and refused by the court. Defendants also claim that the harm award should be diminished because the award of front pay is speculative and Ryther failed to mitigate his damages.

DISCUSSION

1. Judgment As A Matter of Law

Defendants assert that Ryther’s contract was not renewed because his research was poor, he was not contributing to the station’s success and his work spectacle was unsatisfactory. Ryther contends the reasons suggested by defendants for his discharge are pretextual and that age was the motivating factor for not renewing his contract. Defendants insist that Ryther failed to demonstrate a link inbetween his age and the decision not to renew his contract. They also argue that there was no evidence of excuse that focused on the specific reasons suggested by defendants.

Defendants as a proponent of a movement for judgment as a matter of law confront a difficult standard. In ruling on a maneuverability for judgment as a matter of law, the court must consider the evidence in the light most favorable to Ryther, assume that the jury resolved all conflicts in favor of Ryther, assume as true all facts which Ryther’s evidence tended to prove and give Ryther all favorable inferences which may reasonably be drawn from proved facts. Hall v. State Farm Fire & Cas. Co., eight hundred thirteen F.2d one hundred thirty seven (8th Cir. 1987). [Two] The court must deny the maneuverability if reasonable jurors could differ as to the conclusions that could be drawn from the evidence. Id.

A. Ryther’s Prima Facie Case

To make a prima facie case of age discrimination, Ryther must demonstrate that: (1) he was within the protected age group, (Two) his job spectacle was satisfactory; (Trio) his contract was not renewed; and (Four) defendants assigned a junior person with no better credentials to do the same work. Haglof v. Northwest Rehabilitation Inc., nine hundred ten *1517 F.2d 492, four hundred ninety three (8th Cir.1990). See e.g., McDonnell Douglas Corp. v. Green, four hundred eleven U.S. 792, ninety three S. Ct. 1817, thirty six L. Ed. 2d six hundred sixty eight (1973). Proof of a prima facie case permits Ryther to benefit from a presumption of discrimination. At that point, defendants may rebut the prima facie case by coming forward with a legitimate, nondiscriminatory reason for not renewing Ryther’s contract. Once the prima facie case has been rebutted, Ryther must carry his ultimate cargo of persuasion by proving that defendants intentionally discriminated against him based on age. See, e.g., Nelson v. Boatmen’s Bancshares, Inc., twenty six F.3d 796, eight hundred one (8th Cir.1994).

At this stage, the court looks to the ultimate factual issue of whether the evidence is sufficient to permit the jury to infer that age was a determining factor in defendants’ decision not to renew Ryther’s contract. Albeit the sufficiency of Ryther’s displaying of a prima facie case need not be analyzed, the court shortly addresses defendants’ contention that Ryther failed to establish a prima facie case of age discrimination. Despite defendants’ arguments to the contrary, the court finds that Ryther proved the elements of a prima facie case of age discrimination by a preponderance of the evidence.

There is no dispute that Ryther was within the protected age group when his contract was not renewed. Defendants assert that Ryther did not meet their legitimate expectations because he was not drawing substantial viewers. Defendants mistakenly equate their proffered reason for not renewing Ryther’s contract with whether he established a prima facie case. The claim that Ryther failed to attract viewers goes to the issue of whether there was a legitimate business reason for defendants’ deeds. Excluding defendants’ proffered reasons for not renewing Ryther’s contract, there is ample evidence, including positive spectacle appraisals, to support the finding that Ryther’s spectacle was satisfactory. [Trio]

Defendants also assert that Ryther failed to state a prima facie case because he was not substituted by a junior person. The evidence was sufficient to demonstrate that Ryther was substituted by Passolt, who was thirty seven years old when he took over as lead sports anchor at KARE 11. During the term of Ryther’s last contract, Passolt substituted Ryther as the sportscaster at six o’clock. In March 1991, Mason suggested the ten o’clock sportscast to Passolt and Passolt was later promoted to the ten o’clock newscast after Ryther was eliminated from the air. Viewed in the light most favorable to Ryther, the jury could reasonably conclude that Passolt substituted Ryther by assuming his former duties as lead sports anchor. There was also evidence from which the jury could reasonably find that KARE eleven systematically transferred duties performed by Ryther to junior members of the sports department during his last contract.

B. Sufficiency of the Evidence

The court now turns to the critical issue at forearm; whether the evidence was sufficient for the jury to reasonably conclude that defendants intentionally discriminated against Ryther because of his age. Defendants assert they are entitled to judgment as a matter of law based on the testimony of the decision makers that Ryther’s contract was not renewed because of the Gallup research. It is clear that the jury believed Ryther’s evidence and did not believe defendants’ proffered explanation. Construing the record in Ryther’s favor, the court finds that he produced evidence sufficient to discredit defendants’ nondiscriminatory reason for not renewing his contract.

This is not a case, however, where the employer’s proffered reason is wholly without merit or obviously contrived. Thus, to carry his ultimate cargo of persuasion, Ryther must do more than discredit defendants’ proffered explanation. Ryther must also present evidence sufficient to demonstrate that conduct by decision makers reflects a discriminatory attitude based on age and that *1518 the real reason defendants determined not to renew his contract was age discrimination. Whether Ryther’s evidence was sufficient to support the jury’s verdict is a close question. After cautiously reviewing the record, however, the court concludes that the jury reasonably could have found that defendants were motivated by a discriminatory animus based on Ryther’s age.

Based on the evidence introduced, the jury reasonably could have concluded that defendants made the decision not to renew Ryther’s contract before the Gallup research was even undertaken. There was evidence that inbetween one thousand nine hundred eighty eight and one thousand nine hundred ninety KARE eleven transferred many of Ryther’s duties to his junior counterparts. The jury reasonably could have concluded that the transfer of these duties to junior members of the sports department indicated not only that defendants had already determined not to renew Ryther’s contract, but also that defendants’ conduct reflected a discriminatory attitude based on Ryther’s age.

In March one thousand nine hundred ninety several middle managers rated Ryther as transitional and identified areas needing improvement. Defendants never communicated these appraisals to Ryther. Rather, Mason rated Ryther as commendable, indicating that “work is done quickly and accurately; total job responsibilities are met.” Mason explained that the higher rating was neither accurate or based on Ryther’s work spectacle. Instead Mason said she gave Ryther a higher rating because she feared an emotional outburst and believed Ryther would perform better if he received a commendable rating. The jury reasonably could have rejected the explanation provided by Mason as contrived. Mason’s fear of an overly emotional reaction is belied by her telling Ryther that he had “failed in the market” when she exposed that his contract would not be renewed. Moreover, the jury could reasonably infer that Mason did not disclose the appraisals to Ryther because the decision not to renew his contract had been made and, thus, Mason did not want to provide Ryther with an chance to correct any perceived deficiencies.

The evidence introduced by Ryther also permitted the jury to reasonably draw the inference that defendants knew the research, as designed, would not provide a accomplish picture of what viewers thought about Ryther. In designing the research, KARE eleven directed Gallup to ask open-ended questions about key personalities, including the other lead anchors at KARE 11, Passolt and Rosen. However, KARE eleven did not ask such questions concerning Ryther. Defendants explained that the survey would have been too lengthy and that similar questions had been asked about Ryther in a one thousand nine hundred eighty nine research project. The one thousand nine hundred eighty nine research, however, also posed open-ended questions about Rosen and Passolt. The jury reasonably could have found that the length of the survey was a trivial factor and, thus, was not the true reason why defendants omitted Ryther from the open-ended questions.

Taking this evidence in Ryther’s favor, the jury reasonably could have concluded that omitting Ryther from the open-ended questions signalled that defendants had already determined not to renew his contract. The jury could also draw the inference that defendants merely hoped the research results would confirm the decision they had already made rather than provide detailed information about Ryther’s influence on the viewing audience. The jury could also attribute unsavory motives to defendants given the long delay inbetween the research results and the time Ryther was told that his contract would not be renewed. Again, the jury reasonably could have inferred that defendants did not want to provide Ryther with an chance to address any perceived weaknesses.

Defendants also admitted that a higher standard was used to evaluate Ryther than was applied to Passolt. Defendants explained that the different standards were justified because Ryther was the primary sports anchor occupying a “front four” position and Passolt was a less experienced, secondary anchor. The jury, of course, was entitled to reject defendants’ explanation or characterization of the roles of Ryther and Passolt. Viewed in favor of Ryther, the evidence was sufficient for the jury to reasonably find that age, not the roles and practice of Ryther and Passolt, was the real *1519 reason defendants held the anchors to different standards.

In the years preceding the Gallup survey, defendants assigned Passolt to substitute Ryther as the host of a weekly football display. Passolt was also promoted to the six o’clock news and Ryther was switched to a less visible sports feature on the five o’clock news. Albeit Ryther continued to anchor the sports at ten o’clock, the jury could reasonably conclude that at the time of the survey Passolt was a “key personality” at KARE 11. That conclusion finds support in the fact that KARE eleven considered two female anchors who alternated inbetween newscasts as key personalities. It also finds support in defendants’ decision to ask open-ended questions about Passolt but not about Ryther. Thus, the evidence would permit the jury to reasonably reject the explanation that defendants treated Ryther and Passolt differently because of the roles they occupied at KARE 11. The jury could also reasonably infer that defendants treated Ryther differently than his junior counterpart because of his age.

Other circumstantial evidence also supports the jury’s verdict. The jury could have reasonably found that defendants emphasized youthful appearances. Defendants admitted they believed the bags under Ryther’s eyes detracted from his appearance and they discouraged Ryther from wearing glasses. Mason stated that she once considered permitting Ryther to wear glasses because she felt the glasses might help cover the bags under his eyes that lighting and makeup could not liquidate.

There was also evidence that others in the sports department frequently made comments about Ryther’s age. Shaver and others called Ryther “old man” and “old fart” and said he was “too old for the business.” The remarks were not made by or in the presence of the decision makers or senior management. The remarks standing alone do not raise an inference of discrimination. There was evidence, however, that Shaver and Mason had frequent discussions about Ryther. Thus, the jury could have reasonably inferred that Mason knew of the discriminatory attitude on the part of Shaver and others in the sports department.

Eventually, there was evidence that defendants compelled other older employees to choose inbetween demotions or early retirement. Several of the older employees were abruptly given poor spectacle reviews after receiving years of superior ratings. Defendants contend that evidence concerning the older employees was not relevant because they were not on-air talent and, therefore, were not similarly situated to Ryther. Albeit the situations of the older employees and Ryther differ in some respects, the court finds there were enough similarities to render the evidence relevant and admissible. The court also concludes that a jury could reasonably find that defendants intentionally built poor spectacle cases against older employees, including Ryther.

After reviewing all the evidence in the light most favorable to Ryther and providing him the benefit of all favorable inferences, the court concludes there was sufficient evidence for the jury to reasonably infer that Ryther’s age was more likely than not a motivating factor in defendants’ decision not to renew his contract. While the court considers the issue to be close, and albeit it may have reached a different result had it been the factfinder, the court’s task is to examine the sufficiency of the evidence, not to act as the trier of fact. Nelson, twenty six F.3d at 803. (quotation omitted). The court concludes that the evidence was sufficient to support the jury’s finding of intentional age discrimination.

C. Willfulness

Defendants also contend that the evidence was insufficient to support the jury’s finding that defendants willfully violated the ADEA. A plaintiff is entitled to liquidated damages, or dual damages, if the employee can prove that the employer willfully violated the ADEA. Hazen Paper Co. v. Biggins, ___ U.S. ___, ___-___, one hundred thirteen S. Ct. 1701, 1708-10, one hundred twenty three L. Ed. 2d three hundred thirty eight (1993). A disturbance of the ADEA is not deliberate merely because the employer knew the ADEA was “in the picture.” Trans-World Airlines, Inc. v. Thurston, four hundred sixty nine U.S. 111, 132-33, one hundred five S. Ct. 613, 628, eighty three L. Ed. 2d five hundred twenty three (1985); *1520 Biggins, ___ U.S. at ___, one hundred thirteen S. Ct. at 1709. A disturbance of the ADEA is deliberate if “the employer either knew or demonstrated reckless disregard for the matter of whether its conduct was prohibited by the statute.” Biggins, ___ U.S. at ___, one hundred thirteen S. Ct. at 1710; Brown v. Stites Concrete, Inc., nine hundred ninety four F.2d 553, 558-59 (8th Cir.1993) (en banc). “Once a `willful’ disturbance has been shown, the employee need not additionally demonstrate that the employer’s conduct was shocking, or provide direct evidence of the employer’s motivation, or prove that age was the predominant rather than a determinative factor in the employment decision.” Biggins, ___ U.S. at ___, one hundred thirteen S. Ct. at 1710. In reviewing a jury’s finding of willfulness, the foot relevant determination is whether the evidence meets the standard that the employer “either knew or displayed reckless disregard for the matter of whether its conduct was prohibited by the [ADEA].” Brown, nine hundred ninety four F.2d at 560.

The court concludes that the jury could have reasonably inferred that defendants knew their conduct violated the ADEA. It is clear that defendants were more than merely aware of the ADEA statute. Defendants had employment policies which stated they would not discriminate against any member of a protected class. A former program director at KARE eleven said that defendants instructed managers on procedures to guard against age discrimination and prevent accusations of age discrimination. Defendants assert that they had no reason to know their reliance on the Gallup research could later be construed as discriminatory. The jury concluded, however, that defendants’ decision not to renew Ryther’s contract was not based on the market research. As the court has noted, the jury could reasonably infer that defendants made the decision not to renew Ryther’s contract before the research was undertaken and, rather than inform Ryther, began building a poor spectacle case against him. This is not a case where the employer incorrectly, but in good faith, believed that the statute permitted a particular age-based decision. See, e.g., Biggins, ___ U.S. at ___, one hundred thirteen S. Ct. at 1709. Albeit the court may have reached a different result, the court concludes that there was sufficient evidence for a reasonable jury to find that defendants’ willfully violated the ADEA by not renewing Ryther’s contract.

Two. Movability For A Fresh Trial

A fresh trial may be ordered under Fed.R.Civ.P. 50(b) and 59(a) when the verdict is against the clear weight of the evidence, is the result of passion or prejudice or is clearly excessive. Ouachita Nat. Bank v. Tosco Corp., six hundred eighty six F.2d 1291, one thousand two hundred ninety four (8th Cir.1982). While the standard for granting a fresh trial is less stringent than for judgment as a matter of law, a fresh trial shall be granted only to prevent injustice or when the verdict strongly conflicts with the good weight of evidence. Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., Inc., four hundred sixty six F.2d 179, one hundred eighty six (8th Cir.1972), cert. denied, four hundred ten U.S. 930, ninety three S. Ct. 1371, thirty five L. Ed. 2d five hundred ninety two (1973). The court is not free to set aside a verdict merely because it would have ruled differently, or believes that the jury should have drawn different inferences and conclusions from the conflicting testimony. Id. at 186-87.

The true standard for granting a fresh trial on the basis of the weight of the evidence is simply one which measures the result in terms of whether a miscarriage of justice has occurred. Id. at 187. Defendants contend that justice requires a fresh trial in this case. The court has already concluded that the verdict reached by the jury in this case is adequately supported by the evidence. Of course, defendants or other reasonable persons could differ about the correct outcome, but the verdict does not work an injustice or fall against the superb weight of the evidence.

Defendants also stir for a fresh trial asserting that the court erroneously ruled on certain evidentiary matters and that certain jury instructions were erroneously given or refused by the court. Not all errors require a fresh trial. The court should grant a fresh trial only if it finds that an error “misled the jury or had a probable effect on its verdict.” E.I. du Pont de Nemours v. Berkley & Co., Inc., six hundred twenty F.2d 1247, one thousand two hundred fifty seven (8th Cir.1980). Rule sixty one of the Federal Rules of Civil Procedure provides that:

*1521 No error or defect in any ruling or order or in anything done or omitted by the court . is ground for granting a fresh trial . unless refusal to take such activity shows up to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

The cargo of proving harmful error rests on the party moving for a fresh trial.

A. Jury Instructions

The instructions given to a jury must be read as a entire and considered in light of the entire charge. Williams v. Valentec Kisco, Inc., nine hundred sixty four F.2d 723, seven hundred thirty one (8th Cir.1992). The court is not trussed to give the jury instructions requested by the litigants. Rather, “the form and language of jury instructions are committed to the sound discretion of the district court so long as the jury is correctly instructed on the substantive issues in the case.” Id. Albeit defendants purport to “assign as error the failure to give each requested instruction or portion of instruction not given and the providing of each instruction to which protestation was posed,” they concentrate on four omissions which they consider particularly prejudicial. For the following reasons, the court holds that a fresh trial is not warranted based on the instructions given to the jury.

(1) Instruction Number 20

Defendants claim that instruction number twenty given by the court omitted the “essence of the prevailing law on age discrimination.” Defendants contends the court’s language was inadequate because it failed to instruct the jury that plaintiff retained the cargo of persuading them that his contract was not renewed because of his age. They also contend that instruction number twenty permitted the jury to find discrimination based solely on the very first phase of the McDonnell Douglas analysis. The court finds these contentions lack merit.

Instruction number twenty was drawn primarily from § 106.03 of four Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions: Civil, (4th ed. 1987). The court also considered the Supreme Court’s decision in St. Mary’s Honor Center v. Hicks, ___ U.S. ___, one hundred thirteen S. Ct. 2742, one hundred twenty five L. Ed. 2d four hundred seven (1993). Despite defendants’ contention to the contrary, instruction number twenty in no way intimated that Ryther could prevail simply by establishing a prima facie case. The jury was instructed that it could find for Ryther only if he proved that age was a determining factor in defendants’ decision not to renew his contract. The jury was also instructed that, because defendants had suggested a legitimate, non-discriminatory reason for their deeds, to prevail Ryther had to prove that the proffered reason was a excuse or cover-up for defendants’ intentional age discrimination. Thus, the jury was decently instructed that Ryther had the cargo of proving defendants’ reasons were pretextual and that he was, in fact, a victim of intentional age discrimination. The court holds that instruction number twenty was not erroneous as it fairly and adequately introduced the substantive law. [Four]

(Two) Defendants’ Proposed Instruction Number Three

Defendants contend that the court erred by failing to give their requested jury instruction number three verbatim. Defendants proposed an instruction which combined §§ 70.03 and 71.08 of four Devitt, Blackmar & Wolff, Federal Jury Practice and Instructions: Civil, (4th ed. 1987). Defendants claim they were prejudiced by the omission of the proposed language that “[a]nything you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded.” Defendants drew that language from § 70.03 of Devitt, Blackmar & Wolff.

Section 70.03, a preliminary instruction, addresses what constitutes evidence. Before the case began, the court gave the preliminary instruction from the Bench Book for *1522 United States District Court Judges, which communicated the substance of § 70.03 to the jury before the beginning of the case. The court repeatedly admonished the jury via the trial that they could not read, view or consider any news coverage or any other information about the case. The court finds that the jury was decently instructed to disregard information from other sources and to determine the case based solely on the evidence introduced at trial. In lieu of defendants’ instruction, the court instructed the jury almost verbatim from § 71.08 of Devitt, Blackmar & Wolff. The court concludes that the instruction given was accurate and addressed the substance of defendants’ requested instruction. The exclusion of the exact language proposed by defendants was not erroneous and did not result in prejudice.

(Trio) Defendants’ Proposed Instruction Number 15

Defendants claim that the court erred by failing to give their requested jury instruction number fifteen concerning discriminatory remarks in the workplace. [Five] Defendants relied on two Eighth Circuit cases as authority for their proposed instruction. See Radabaugh v. Zip Feed Mills, Inc., nine hundred ninety seven F.2d 444, four hundred forty nine (8th Cir.1993); Beshears v. Asbill, nine hundred thirty F.2d 1348, one thousand three hundred fifty four (8th Cir.1991). These cases discussed remarks in the workplace in the legal context of determining whether a plaintiff was entitled to a mixed-motive instruction as established by Price Waterhouse v. Hopkins, four hundred ninety U.S. 228, 258, one hundred nine S. Ct. 1775, 1794-95, one hundred four L. Ed. 2d two hundred sixty eight (1989). In both cases, the Eighth Circuit concluded that “stray remarks” do not suffice to invoke the Price Waterhouse formula. The Price Waterhouse method of proof was not employed in this case. Thus, defendants failed to cite any authority which provided direct guidance on the necessity or propriety of a jury instruction on this issue.

The court has discretion to deny any instruction that is not entirely correct. The gist of defendants’ instruction was that only remarks by decision makers involved in the decisional process could support an inference of discrimination. However, there was evidence from which the jury could have reasonably inferred that the statements made by Shaver and others in the sports department were conveyed to Mason, a decision maker who played a key role in the decisional process. Albeit Mason denied any skill of the statements, her credibility was decently left for the jury to determine.

The court concludes that the instruction requested by defendants improperly characterized the law as it related to this case. Here the significance of the discriminatory remarks turned on the resolution of disputed facts. The instruction at issue would have eliminated this factual determination from the jury. The court concludes that it decently exercised its discretion in declining to give defendants’ instruction number 15. Given the evidence of discrimination apart from the discriminatory remarks, the court also notes that no prejudice resulted from the error defendants allege.

(Four) Defendants’ Proposed Instruction Number 16

Defendants contend that the court erred by failing to give their requested jury instruction number sixteen verbatim. [6] Defendants *1523 complain that the court erroneously failed to instruct the jury on the minimal nature of their cargo of production. Defendants also contend the court erred by not instructing the jury that reliance on market research is an suitable basis for making decisions in the broadcast industry. These contentions lack merit.

At trial, defendants asserted that Ryther’s contract was not renewed because his research results were poor and he was not contributing to the station’s success. Defendants also cited Ryther’s unsatisfactory work spectacle. Under McDonnell Douglas, the employer meets its cargo of production simply by producing evidence of nondiscriminatory reasons for its deeds. Hicks, ___ U.S. at ___, one hundred thirteen S. Ct. at 2748. At the charge conference, defendants argued that they had carried their cargo of production. The court agreed and, accordingly, instructed the jury that “[d]efendants have suggested evidence of legitimate, non-discriminatory reasons for their deeds, therefore, plaintiff must prove by a preponderance of the evidence that the reasons suggested by defendants are merely a preposition or cover-up for intentional age discrimination.” Jury Instruction No. 20.

The instruction given explicitly told the jury that the reason proffered by defendants, namely the market research results, was a legitimate, non-discriminatory reason for their deeds. The court rejected defendants’ language that “an employer is entitled to rely in good faith on broadcast market research as an adequate, nondiscriminatory basis for making personnel decisions in the broadcast industry.” Albeit defendants suggested pro testimony concerning the strong reliance the media industry places on market research, the court was not obligated to take judicial notice of that fact. The ultimate issue here, whether defendants’ deeds were motivated by the research results or Ryther’s age, was, of course, an issue decently left to the jury to determine.

Defendants also complain that the court’s instructions impermissibly permitted the jurors to substitute their own judgment for the employer’s judgment. This argument borders on being frivolous. The court explicitly instructed the jury:

You may not consider whether the reasons given by defendants constitute a good or bad business decision. You may not comeback a verdict for plaintiff just because you disagree with defendants’ decision or believe it to be harsh or unreasonable.

Jury Instruction No. 20. The court’s language was drawn from the Eighth Circuit’s decision in Walker v. AT & T Technologies, nine hundred ninety five F.2d 846, 849-50 (8th Cir.1993), and the model instructions for the Eighth Circuit. See The Bar Association of Metropolitan St. Louis, Model Civil Rights in Employment Jury Instructions for the Eighth Circuit § 7.03(a) (1989). While the court did not adopt the exact language proposed by defendants, it concludes that the instruction given decently stated the substantive law about an employer’s right to make business judgments absent unlawful discrimination.

B. Evidentiary Rulings

Defendants also seek a fresh trial based on certain evidentiary rulings. Defendants challenge rulings made concerning employment deeds and the release of age discrimination claims by former KARE eleven employees and an suggest of an alternative position to Ryther. The mere existence of evidentiary errors is not a sufficient basis for a fresh trial. Rather a fresh trial is adequate under Rule fifty nine only when “an evidentiary ruling was so prejudicial as to require a fresh trial which would be likely to lead to produce a different result.” O’Dell v. Hercules, Inc., nine hundred four F.2d 1194, one thousand two hundred (8th Cir.1990). The court concludes that a fresh trial is not warranted in this case as no error was committed that prejudiced the substantial rights of defendants.

Several witnesses who testified at trial were former KARE eleven employees who reached severance or separation agreements with defendants. The agreements required the former employees to release all potential claims against defendants, including claims of age discrimination. The court concluded that the severance agreements did not fall *1524 within the bar of Rule four hundred eight of the Federal Rules of Evidence. See Cassino v. Reichhold Chems., Inc., eight hundred seventeen F.2d 1338, one thousand three hundred forty three (9th Cir. 1987) (Rule four hundred eight does not bar admission of an agreement to release potential claims as part of a severance pay package). The court also recognized that evidence of agreements inbetween defendants and former employees was relevant and admissible to demonstrate bias. Given the nature of the evidence, however, the court took care to decently limit its introduction in order to prevent unfair prejudice to defendants.

Defendants’ claim that evidence was admitted concerning six severance agreements is unfounded. Defendants seem to raise a belated protestation to statements made by Ryther’s counsel during her opening statement. Any challenge to the opening statement has been waived, however, as defendants failed to object at trial. Limited testimony concerning claims released via severance agreements was permitted at trial. [7] The evidence was admitted to assist the jury assess the credibility of certain witnesses. Defendants contend the evidence was suggested to improperly suggest that KARE eleven had admitted it discriminated against former employees on the basis of their age. Despite this concern, defendants never requested a limiting instruction. The court concludes that the admission of the challenged evidence was not erroneous. The court also notes that if any evidentiary error occurred it was not so prejudicial as to warrant a fresh trial.

Defendants also claim the court erred by not admitting evidence of an suggest of alternative employment to Ryther. They claim evidence of the job suggest should have been permitted to refute Ryther’s claim that he was never suggested an alternative position. [8] Defendants also assert the suggest of employment was relevant to mitigation. The suggest to which defendants refer was extended by defendants’ attorneys on the condition that Ryther not file any discrimination claims against defendants. The suggest involved a sports reporter position paying up to $50,000. The suggest was made after Ryther indicated he was filing claims of age discrimination with the EEOC and was quickly withdrawn once he indicated he would pursue his claims. Because the suggest of employment was extended only on the precondition that Ryther not pursue his claims of age discrimination and was subsequently withdrawn, the court concludes that it had little, if any, relevance to the issues identified by defendants. Accordingly, the court concludes that the exclusion of the evidence was not erroneous. The court also notes that if any error occurred it was not so prejudicial as to warrant a fresh trial.

Eventually, defendants complain the court erred by admitting evidence concerning the employment circumstances and separation from employment of other former employees. Defendants assert the evidence concerning the other employees was not relevant as they were not similarly situated to Ryther either because they were not on-air talent or they were affected by employment decisions made by others unrelated to the decision not to renew Ryther’s contract.

While the situations of the other former employees and Ryther differ in some respects, the court finds there was a sufficient, albeit not staggering, demonstrating of a pattern and practice of discrimination to warrant admission of the evidence suggested by Ryther. The evidence was relevant to the issue of preposition and aided the jury’s capability to assess whether defendants acted with a legitimate or illegitimate motive. As with the severance agreements, the evidence admitted concerning other employment circumstances was cautiously circumscribed by the court. The court concludes that the admission of the challenged evidence was not erroneous. The court also notes that if any evidentiary error *1525 occurred it was not so prejudicial as to warrant a fresh trial.

Three. Motility to Reduce Harm Award

Defendants assert that the amount of the verdict should be diminished for two reasons. Defendants contend the amount of the front pay award is speculative. Defendants argue the award assumes that Ryther’s contract would have been renewed twice with him remaining employed in the same position for six extra years. Front pay, by its nature, is somewhat speculative. The award here, taking into account salary as well as fringe benefits and pension loss, seems to reflect the amount Ryther would have earned during the course of one extra three year contract. Albeit the damages awarded by the jury are generous, the front pay is adequately supported by the evidence and is not unduly speculative.

Defendants also assert that the back pay award should be diminished because Ryther failed to use reasonable efforts to mitigate his damages. The cargo of proof on mitigation rests with the defendants. The court rejects defendants’ challenge to jury instruction number thirty and holds that the jury was decently instructed on the substantive law of mitigation. There is ample evidence from which the jury could have reasonably concluded that Ryther used reasonable efforts to obtain alternative employment and mitigate his damages. Accordingly, the court denies defendants’ motility to reduce the back pay and front pay damages awarded by the jury.

CONCLUSION

The evidence supports the jury’s verdict. After reviewing all the evidence in the light most favorable to Ryther and providing him the benefit of all favorable inferences, the court concludes there was sufficient evidence for the jury to reasonably infer that Ryther’s age was more likely than not a motivating factor in defendants’ decision not to renew his contract. The court also concludes that a fresh trial is not warranted in this case as no error was committed that prejudiced the substantial rights of defendants. The court also denies defendants’ movability to reduce the damages award. Based on the foregoing, IT IS HEREBY ORDERED that defendants’ motions for judgment as a matter of law and for a fresh trial or a reduction of damages are DENIED.

NOTES

[1] For example, Gallup asked viewers “How would you describe Jeff Passolt? What comes to mind that you particularly like or dislike about him as a newscaster?”

[Two] The one thousand nine hundred ninety one amended version of Rule 50(b) switched the terminology, but not the standard articulated in long-standing case law. See Fed. R.Civ.P. Fifty advisory committee’s note on one thousand nine hundred ninety one amendment.

[Trio] In March one thousand nine hundred ninety Ryther was rated “commendable.” While this was not the highest possible rating, it did indicate that “work is done quickly and accurately; total job responsibilities are met.” The written appraisal also contained several positive remarks about Ryther’s spectacle. Ryther’s previous spectacle appraisals rated his work as “superior.”

[Four] Moreover, instruction number twenty was buttressed by the other instructions given by the court. Instruction number four stated that Ryther had the cargo “to prove every essential element of his claim by a preponderance of the evidence.” Instruction number five further explained what it meant for a party to have the cargo of proof on a given proposition.

[Five] Defendants’ proposed instruction number fifteen stated that:

Not all comments that reflect a discriminatory attitude will support an inference that age was a determining factor in an employment decision. You must distinguish inbetween comments that demonstrate age discrimination in the decision process and comments made by individuals closely involved in the employment decision from stray remarks in the workplace, statements by non-decisionmakers, and statements by decisionmakers unrelated to the decisional process. The latter types of comments do not support an inference that age was a determining factor in an employment decision.

[6] Defendants’ instruction stated:

If you find that plaintiff has primarily established an inference of age discrimination, as I have just defined it for you, then you must consider whether KARE eleven has introduced a nondiscriminatory reason for its deeds. The cargo on KARE eleven is minimal. KARE eleven bears only the cargo of producing evidence to demonstrate reasonable factors other than age for not renewing plaintiff’s contract. The ultimate cargo of persuasion remains with plaintiff.

An employer is entitled to rely in good faith on broadcast market research as an adequate, nondiscriminatory basis for making personnel decisions in the broadcast industry.

[7] The court notes that defendants suggested testimony concerning a severance package during the direct examination of one of their witnesses. The court also sustained numerous defense protestations to questions designed to elicit detailed information about various severance agreements and the release of potential claims of age discrimination.

[8] At trial, Ryther testified that defendants did not suggest him an alternative position. Mason and Brook also testified that Ryther was not suggested another position at the time of his termination.

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