United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                             Nos. 01-1146/01-1244
                                 ___________

Norman A. Ross,                       *
                                      *
            Appellee/Cross-Appellant, *
                                      *
     v.                               * Appeals from the United States
                                      * District Court for the Western
Kansas City Power                     * District of Missouri.
& Light Company,                      *
                                      *
            Appellant/Cross-Appellee. *
                               ___________

                            Submitted: December 12, 2001

                                 Filed: June 10, 2002
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
                         ___________

BEAM, Circuit Judge.

      Kansas City Power & Light Company (KCPLC) appeals the jury verdict
entered in favor of Norman Ross in this 42 U.S.C. § 1981 employment discrimination
claim. We affirm in part, and reverse in part.

I.    BACKGROUND

     Ross, a black male, began working for KCPLC in 1979 as a "plant helper," and
became a Meter Reader in 1980. Ross worked in that capacity for eighteen years. In
1988, Ross obtained a bachelor's degree in Systems Management from Rockhurst
College. After receiving his degree, he also took additional computer classes from
a community college. In 1998, he was temporarily promoted to the "CIS Plus
Project" which involved testing KCPLC's "Y2K" software. In June 1999 he became
a computer applications coordinator, and at the time of trial, he had been recently
promoted to a programmer analyst.

       At KCPLC, employees could apply for a promotion through either the Position
Opportunity Program (POP) or the union bidding procedure, depending on the type
of job. The POP was designed to allow in-house workers to apply for job openings
within KCPLC. Under the POP, once an employee applies for a position, the
application is reviewed by the human resources department to determine if an
applicant meets the minimum qualifications for the position. If the minimum
qualifications are met, the application is passed along for the interview process.
Application for a union position was governed by the union bidding procedure as set
forth in the collective bargaining agreement between KCPLC and the electrical
workers union, the details of which are immaterial to our discussion of this case.

       Although Ross applied for several promotions prior to bringing this action in
1998 the only two positions relevant to our discussion are the service coordinator
position, and the business systems analyst position. In June 1997, Ross applied for
the service coordinator position, which was a posted union position. A service
coordinator acts as KCPLC's project manager for new installations or for modification
of electrical service. The bid notice set forth the minimum job qualifications and
required applicants to forward proof of completion of relevant courses or equivalent
experience with their bids. Ross did not receive this position, ostensibly because he
did not have the minimum educational qualifications (two practical electricity
courses) for the position. Instead, Mary Follin and Russell Wiley were selected as
service coordinators. Follin had only taken one of the required practical electricity



                                        -2-
courses but instead was allowed to substitute equivalent classes to satisfy this
requirement.

       In December 1998, Ross applied for a business systems analyst position, posted
through the POP program. The duties of this position included performing systems
analysis design and testing, providing user training and support, and maintaining
business systems databases. Ross's application was passed along by the human
resources department for an interview with Ken Geier, the decision-maker for this
position. Ross testified on cross-examination that after the interview, he sent Geier
an email to clarify that the extent of his programming experience was on the
"educational side" and not the "applied side." Geier ultimately selected Glenda
Schnetzer for this position, apparently because of her superior qualifications.

       In June 1998, Ross filed this action, alleging racial harassment, failure to
promote, and retaliation. The district court granted summary judgment with respect
to the harassment and retaliation claims, and left the failure to promote claims for the
jury. At trial, the district court denied KCPLC's motion for judgment as a matter of
law (JAML) and submitted five promotion claims–computer records administrator,
computer applications coordinator, programmer analyst, service coordinator and
business systems analyst–to the jury. The jury returned verdicts in favor of KCPLC
on the first three positions and for Ross on the remaining two. The jury awarded Ross
$6,000 in actual damages and $750,000 in punitive damages for the service
coordinator position, and $10,000 in actual damages and $750,000 in punitive
damages for the business systems analyst position. Following post-trial motions, the
district court reduced the punitive damages awards to $120,000 and $200,000
respectively, and set attorney fees and costs.

       On appeal, KCPLC argues that JAML should have been granted prior to jury
submission because Ross was not as qualified as the successful applicants for the
positions in question. Ross cross appeals, arguing for reinstatement of the punitive

                                          -3-
damages award or the choice of a new trial on damages. Ross also appeals the
amount of the district court's award of attorney fees and costs. Finally, Ross
conditionally appeals the district court's grant of partial summary judgment, to be
considered only if we reverse any part of the favorable jury verdict.

II.   DISCUSSION

       This court reviews the denial of a JAML de novo. Feltmann v. Sieben, 

, 974 (8th Cir. 1997). We view the evidence in the light most favorable to
the non-movant and give him the benefit of all reasonable inferences. 

employment discrimination case, a court must render JAML when there is no legally
sufficient basis for a "rational factfinder" to conclude the employer intentionally
discriminated. Reeves v. Sanderson Plumbing Prods., Inc., 

, 148 (2000).

        Because there was no direct evidence of discrimination here, we apply the
burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 

(1973). Yates v. Rexton, Inc., 

, 799 (8th Cir. 2001) (there is direct
evidence of discrimination only when there is specific link between challenged
employment action and the alleged animus). To raise a presumption of discrimination
in this failure-to-promote case, Ross must show that (1) he is a member of a protected
group; (2) he was qualified and applied for an available position; (3) he was rejected;
and (4) employees similarly situated but not part of the protected group were
promoted instead. Shannon v. Ford Motor Co., 

, 682 (8th Cir. 1996).
Once Ross establishes the prima facie case, the burden of production shifts to
KCPLC, who must rebut the presumption of discrimination with evidence of a
legitimate, nondiscriminatory reason for Ross's rejection. Texas Dep't of Cmty.
Affairs v. Burdine, 

, 254 (1981). If KCPLC meets that burden, Ross
may win by proffering evidence that KCPLC 's reason was a pretext for intentional
discrimination. 

.



                                         -4-
      1.     Service Coordinator Position

       KCPLC argues the district court erred in refusing to grant JAML on the service
coordinator position. KCPLC argues that Ross was not qualified for this position
because he had not completed course work in Practical Electricity I and II. The
district court found, and we agree, there was evidence in the record that qualifications
for jobs were occasionally waived if an applicant had satisfied the requirement
through other course work or experience. At trial, counsel elicited testimony from
Ross to the effect that his course work and experience were similar enough to
Practical Electricity I and II to satisfy this prerequisite. Further, there was also
evidence that KCPLC had accepted a successful applicant's college physics course
as a substitute for Practical Electricity II, even though there was no evidence that this
physics class had electrical instruction.

       Thus, Ross established his prima facie case for this claim,1 and the burden
shifted to KCPLC to produce a legitimate, nondiscriminatory reason for not
promoting him. KCPLC's stated reason was that Ross did not supplement his
application for the position with proof of equivalent coursework in lieu of the
practical electricity requirements. While this is true, Ross also submitted evidence
that the human relations department occasionally contacted applicants who appeared
to be lacking a prerequisite to determine whether they had educational or practical
experience that might satisfy the missing requirement. Ross, however, was not
contacted and given this opportunity to supplement his application. The jury



      1
        KCPLC argues that Ross only submitted evidence as to the race of Mary
Follin, and not Wiley. We agree with Ross that KCPLC did not make this argument
to the district court in its motion for JAML, cf. Kaplon v. Howmedica, Inc., 

, 266 (8th Cir. 1996) (issues adequately raise in JAML could be considered on
appeal), and that regardless, there was sufficient evidence for the jury to infer Wiley's
race in this case.

                                          -5-
obviously believed Ross's evidence of pretext, as it was entitled to. We therefore
affirm the jury verdict on this claim.

      2.     Business Systems Analyst Position

       We reverse the jury verdict in favor of Ross on this claim and direct the district
court to enter JAML in favor of KCPLC for the business analyst position. While
Ross again met his prima facie case, KCPLC countered with evidence that the
candidate it selected, Schnetzer, was more qualified. Ross claims that evidence of his
qualifications, Schnetzer's qualifications and the atmosphere of discrimination were
all permissible factors allowing the jury to conclude that the employer's reason was
pretextual. We disagree.

       In addition to the minimum educational requirements, the business systems
analyst position had the following posted special requirements: "Working knowledge
of CIS Plus System and KCPL business practices/processes in Customer Services."
The evidence showed that the HR department did pass along Ross's POP application,
indicating that he met the bare minimum educational requirements for the job and he
was eligible for an interview. However, Ross's own testimony indicates that the
eventually successful candidate was more qualified. As earlier indicated, Ross
admitted that he sent the decision-maker for this position, Ken Geier, an email to the
effect that the extent of his programming experience for this position was "on the
educational side and not the applied side." Geier determined that Schnetzer had
experience with KCPLC's then-current CIS computer system and more than seven
years of customer service experience. Ross had experience in neither of those areas.
Geier also scored each candidate based on several criterion for the job, which
included education and experience in several different areas. Out of a possible total
score of 400, Schnetzer scored 317.5, while Ross scored 182.5.




                                          -6-
       These amount to legitimate nondiscriminatory reasons for selecting Schnetzer
for the promotion instead of Ross, and no reasonable jury could conclude otherwise.

(JAML appropriate where parties have been fully heard and
there is no legally sufficient basis for a reasonable jury to find for the party on that
issue). In the usual course of events, an employer will hire the most qualified
candidate, and an employer, not a federal court, is in the best position to "[i]dentify[]
those strengths that constitute the best qualified applicant." Duffy v. Wolle, 

, 1037-38 (8th Cir. 1997). We have oft repeated the maxim that the federal
courts do not sit as super-personnel departments assessing the business judgments
made by employers. E.g., Wilking v. County of Ramsey, 

, 873 (8th Cir.
1998). Instead, the courts address "'[t]he ultimate question in every employment
discrimination case involving a claim of disparate treatment,'" which is "'whether the
plaintiff was the victim of intentional discrimination.'" Evers v. Alliant Techsystems,
Inc., 

, 955 (8th Cir. 2001) (quoting 

).

       An employer is properly entitled to judgment as a matter of law "'if the record
conclusively reveal[s] some other, nondiscriminatory reason for the employer's
decision.'" Cha v. Henderson, 

, 805 n.3 (8th Cir. 2001) (quoting 

). Here the record conclusively reveals that Schnetzer's unique skills
for this particular position were superior to Ross's. As noted, Schnetzer had seven
years of customer service experience and experience in using the company's then-
current CIS computer system, both of which were special requirements of this
position. Furthermore, Schnetzer scored considerably higher than Ross on Geier's
evaluation scale. These are adequate, and in fact, quite understandable,
nondiscriminatory reasons for KCPLC's decision to promote Schnetzer instead of
Ross. See, e.g., Gentry v. Georgia-Pacific Corp., 

, 650-51 (8th Cir.
2001) (no evidence of discrimination in the promotion selection process where
successful candidate graded higher on scored interview process). Accordingly,
KCPLC is entitled to judgment as a matter of law for the business systems analyst
position.

                                          -7-
      3.     Cross-Appeal

       Ross cross appeals the remittitur of the punitive damages award, the district
court's grant of partial summary judgment, and the amount of the district court's
award of attorney fees and costs. We review de novo the district court's
determination of the constitutionality of punitive damages awards. Cooper Indus. Inc.
v. Leatherman Tool Group Inc., 

, 536 (2001); Callantine v. Staff
Builders, Inc., 

, 1133 (8th Cir. 2001).

       We review the grant of summary judgment on racial harassment and retaliation
claims de novo, applying the same standard as the district court and examining the
record in the light most favorable to the nonmoving party. Barge v. Anheuser-Busch,
Inc., 

, 258 (8th Cir. 1996).


             a.   Punitive Damages


        Ross argues he is entitled to reinstatement of the entire punitive damages
award, and in the alternative argues he should have been given the option of a new
trial in lieu of remittitur. KCPLC argues the punitive damages should not have been
submitted to the jury, that the damages are still excessive following reduction and that
it is therefore entitled to a new trial or a further reduction.


       In Kolstad v. American Dental Ass'n, 

(1999), the Supreme Court
addressed the contours of the standard for when punitive damages should be
submitted to the jury in an employment discrimination case. Punitive damages may
be recovered for employment discrimination if the employer engages in intentional
discrimination with malice or with reckless indifference to the individual's protected
rights. 

. However, a plaintiff does not have to establish


                                          -8-
egregious misconduct on the part of an employer in order to have punitive damages
submitted to the jury. Madison v. IBP, Inc. 

, 795 (8th Cir. 2001).


        The district court submitted punitive damages to the jury because it found that
the evidence showed that KCPLC occasionally took "special efforts" on behalf of
white applicants, including making further inquiry when their applications did not
initially meet minimum qualifications. Further, there was evidence that KCPLC may
have passed over qualified internal black candidates in favor of new college graduates
who were white. In light of this evidence, the district court correctly submitted
punitive damages to the jury. See 

(submission of punitive damages
issue to jury appropriate where, even though company had anti-discrimination policy
and procedures, those procedures were not followed by managers).


      Following post-trial motions, the district court held that the jury's punitive
damages award violated due process and reduced the award for the service
coordinator position2 from $750,000 to $120,000. The district court was required by
the Due Process Clause to undertake an examination of the punitive damages award.
BMW of North America, Inc. v. Gore, 

, 572-74 (1996).3 In BMW, the
Court held that the Constitution provides an upper limit on punitive damage awards
so that a person has "fair notice not only of the conduct that will subject him to
punishment but also of the severity of the penalty that . . . may [be] impose[d]." 

The Court set out the following factors to be used in determining the

      2
       Because we reverse the judgment in favor of Ross for the business systems
analyst position, we need not discuss the punitive damages award for that claim.
      3
         Although BMW involved a Fourteenth Amendment due process review of a
state's imposition of punitive damages on a tortfeasor, we have previously applied the
BMW analysis to review a federally imposed punitive damages award in an
employment discrimination case. See Henderson v. Simmons Foods, Inc., 

, 619 (8th Cir. 2000).

                                         -9-
reasonableness of a punitive damages award: the degree of reprehensibility of the
defendant's conduct; the ratio or relationship between actual harm inflicted on
plaintiff and the punitive damages award; and civil penalties authorized for
comparable misconduct. 

        Here, KCPLC's reprehensibility, while enough for liability, was not enough for
a punitive damages award which totaled a ratio 125:1 over the compensatory award.
In BMW, the Supreme Court struck down a 500:1 ratio of punitive damages to
compensatory damages as violative of the Due Process Clause of the Fourteenth
Amendment. 

586. While the courts should not employ a mechanical
mathematical approach in determining the reasonableness of punitive damages
awards, 

we note that the district court's formula still results in a 20:1 ratio
with the compensatory damages award. From our de novo review of the record, this
is still too high for the conduct which occurred in this case. Thus, while we agree
with the district court that a $750,000 award violated due process, we further reduce
the punitive damages award from $120,000 to $60,000, resulting in a 10:1 ratio. Cf.
Kimzey v. Wal-Mart Stores, Inc., 

, 577-78 (8th Cir.1997) (reducing
punitive damages from approximately 140:1 to a 10:1 punitive to compensatory
ratio).


        Ross's argument, based on Thorne v. Welk Investment, Inc., 

(8th Cir. 1999), that he was entitled to the option of a new trial on damages, absent
his consent to the district court's "remittitur" is unavailing. In Thorne we held that
the district court erred when it remitted an excessive verdict without first obtaining
the plaintiff's consent or offering the plaintiff the option of proceeding to a new trial.

Here, while perhaps labeled as such, the action the district court took was
not actually a remittitur, but instead was simply a reduction of the excessive punitive
damages award in conformity with constitutional limits. See Johansen v. Combustion



                                           -10-
Eng'g, Inc. 

, 1331-32 (11th Cir. 1999). As the Eleventh Circuit
explained:


      A constitutionally reduced verdict . . . is really not a remittitur at all. A
      remittitur is a substitution of the court's judgment for that of the jury
      regarding the appropriate award of damages. The court orders a
      remittitur when it believes the jury's award is unreasonable on the facts.
      A constitutional reduction, on the other hand, is a determination that the
      law does not permit the award. Unlike a remittitur, which is
      discretionary with the court . . . a court has a mandatory duty to correct
      an unconstitutionally excessive verdict so that it conforms to the
      requirements of the due process clause.

(emphasis in original). While the traditional remedy of remittitur does
require the plaintiff's consent in order to comport with the Seventh Amendment right
to jury trial, Thorne, 197 F.3d at 1212,4 the court's mandatory review of a punitive

      4
        Although in Thorne, awards for both compensatory and punitive damages
were reviewed and remitted or reduced, we do not think this case stands for a position
contrary to our holding today. In Thorne, we analyzed the district court's decision to
reduce punitive damages separately from the analysis of the compensatory damages

. In upholding the remitted compensatory award, we
found that the jury's verdict was excessive as a matter of law and noted that such
verdicts were "monstrous" or "shocking." 

punitive damages, however,
we noted that the district court had correctly utilized the factors (from BMW) to
determine constitutionality. 

compensatory damages and punitive award
were clearly separate in the opinion, and consequently, we believe the portion of the
opinion which held that the Seventh Amendment requires consent for a remittitur
referred to the compensatory damages verdict only. 

       Furthermore, the law in this circuit supports the notion that the district court's
duty to review the constitutionality of punitive damages awards is independent of the
Seventh Amendment constraints on the plaintiff's right to consent to remittitur. See

(affirming the district court's reduction of punitive

                                          -11-
damages award does not implicate the Seventh Amendment. The plaintiff's consent
to a constitutional reduction of a punitive damages award is "irrelevant" because the
court must decide this issue as a matter of law. 

.
Accordingly, we affirm as modified the district court's reduction of Ross's punitive
damages award.


             b.   Harassment


      Ross also argues the district court erred in granting summary judgment on his
claims of a racially hostile environment and retaliation. Ross brought these claims
pursuant to 42 U.S.C. § 1981. In analyzing a claim of hostile environment under
section 1981, we apply the same standards as in a similar Title VII claim. Whidbee
v. Garzarelli Food Specialties, Inc., 

, 69 (2d Cir. 2000); Hardin v. S.C.
Johnson & Son, Inc., 

, 347 n.2 (7th Cir. 1999). Cf. Kim v. Nash Finch
Co.. 

, 1063 (8th Cir. 1997) (following 1991 amendments to Civil
Rights Act, legal theories of recovery for intentional discrimination under section
1981 and Title VII are "substantially identical").


       To establish a claim for a racially hostile work environment, Ross must show
he is a member of a protected group and was subjected to unwelcome race-based
harassment which affected a term, condition, or privilege of employment. Ross must
also show the employer knew or should have known of the harassment and failed to


damages verdict following constitutional review and despite plaintiff's objections to
reduction); 

n.5 (plaintiff not given option of new trial before
reduction of punitive damages). Cf. Gorman v. Easley 

, 749 (8th Cir.
2001) (district courts must undertake independent review of the evidence to
determine whether it supports punitive damages); Pulla v. Amoco Oil Co., 

, 658 (8th Cir. 1995) ("It is clear that an award of punitive damages is subject to
review to determine whether it violates principles of substantive due process.").

                                         -12-
take prompt and effective remedial measures to end the harassment. Willis v.
Henderson, 

, 808 (8th Cir. 2001). Harassment which is severe and
pervasive is deemed to affect a term, condition, or privilege of employment. Faragher
v. City of Boca Raton, 

, 786 (1998).


       The district court found vague the evidence regarding racial jokes and cartoons
as alleged in a letter from Ross to Joe Ann Alexander in the employee relations
department, but only one such item was placed in Ross's mailbox. Ross alleges racist
literature was circulated at KCPLC. However, the court was not supplied with
exhibits displaying this material. Nor was there evidence in the record that Ross
worked at the location where this racist material was allegedly circulated. There was
evidence in the record that an employee called Alexander a "black bitch," but that
Alexander was not bothered by this. Ross also complained about "mean spirited" and
"intolerant" conversations regarding whether he would take Martin Luther King, Jr.
Day as a holiday, and his opinion on racial relations. Although Ross made allegations
that another employee wore a white hood, that black dolls were lynched from
African-American employee mail slots, and that human excrement was put on the
lockers of African-American workers, the district court found there was an utter lack
of proof regarding each of these allegations. Finally, one KCPLC manager admitted
using the word "nigger" at the workplace on one occasion, but there was no evidence
Ross was present at the time.


      The district court ruled that only three of the above events (the "bitch"
comment, the Martin Luther King, Jr. Holiday comment, and the racial relations
discussion) occurred during the relevant period of limitations–from 1993 through
1998, when this action was filed. The district court correctly noted that the latter two
incidents were not objectively offensive within the meaning of 

.



                                         -13-
       The first incident, the "black bitch" comment, was a singular event, not directed
toward Ross, and there was no evidence it was repeated in Ross's presence. We agree
with the district court that this particular one-time incident, while offensive, does not
rise to the level of harassment necessary to prove a hostile environment. As the
Faragher Court noted, "isolated incidents (unless extremely serious) will not amount
to discriminatory changes in the 'terms and conditions of 

. Accordingly, we affirm the district court's grant of summary judgment on this
issue.


             c.   Retaliation


       In the order granting partial summary judgment, the district court noted that
Ross had not responded to KCPLC's motion for summary judgment with regard to the
retaliation claim and therefore construed the claim as abandoned. Ross moved for
reconsideration of this ruling, and, after thoroughly examining the pleadings and
determining that a retaliation claim was not adequately stated, the district court
alternatively ruled on the merits of the claim.


        Ross's retaliation claim, in essence, is that the denial of promotions was in
retaliation for his participation in protected conduct. The applications for promotions
in question were made on or after December 1996. The district court examined the
record and found that Ross's "protected activity" consisted of the 1990 letter to
Alexander and "complaints" made in the 1980's and early 1990's to a personnel
representative, Charles James. James testified in a deposition that Ross complained
about being passed over for promotions in the early to mid 1980's. James also
testified that Ross was a "spokesperson" for racial discrimination in meter reading
jobs. However, James left the company in 1995, and was not involved in any
decisions regarding Ross's applications for promotions after 1996.


                                          -14-
       The elements of a retaliation claim under section 1981 are (1) protected
activity, (2) subsequent adverse employment action, and (3) a causal relationship
between the two. 

. We agree with the district court's
conclusion that the protected activity in question here, which occurred in the early
1990's at the latest, does not have the requisite causal connection to the denial of
promotions occurring after 1996. See Dhyne v. Meiners Thriftway, Inc., 

, 989 (8th Cir. 1999) (four month gap "weakens" inference that retaliation
occurred in adverse employment action). Here, the gap between protected activity
and adverse employment action is measured in years, not months. In light of this,
there is not an adequate causal connection between the protected activity and the
denial of promotions as a matter of law. We therefore affirm the district court's grant
of summary judgment on Ross's retaliation claim.


             d.   Attorney Fees


       Finally, Ross complains about the amount of prevailing party attorney fees
awarded by the district court, which awarded Ross $168,551.78 in attorney fees and
$14,700.79 in costs. Prevailing parties are entitled to an award of reasonable attorney
fees based on the number of hours reasonably expended multiplied by a reasonable
hourly rate. Hensley v. Eckerhart, 

, 433 (1983). "It remains for the
district court to determine what fee is 'reasonable.'" 

reviewed the record
and the district court's extremely thorough and well-reasoned order on attorney fees
and costs and find that the district court did not abuse its considerable discretion in
this instance.




                                         -15-
III.   CONCLUSION


      For the foregoing reasons, we affirm in part, reverse in part, and remand for
proceedings consistent with this opinion.


       A true copy.


             Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -16-