United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                               No. 04-3807/04-3990
                                  ___________

Desi A. Ledbetter,                    *
                                      *
       Appellee/Cross-Appellant,      * Appeal from the United States
                                      * District Court for the
       v.                             * Eastern District of Arkansas.
                                      *
Alltel Corporate Services, Inc.,      *
                                      *
       Appellant/Cross-Appellee.      *
                                      *
                                 ___________

                             Submitted: November 16, 2005
                                Filed: February 7, 2006
                                 ___________

Before SMITH, HEANEY, and BENTON, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

      Desi A. Ledbetter, an African-American, sued his employer, Alltel Corporate
Services, Inc. (ACS), for race discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42
U.S.C. § 1981. After a bench trial, the district court1 found for Ledbetter, awarding
backpay and compensatory damages. ACS appeals, arguing that the district court
erred in finding intentional race discrimination, admitting statistical evidence,


      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
calculating backpay, and awarding compensatory damages. Ledbetter cross-appeals,
challenging the calculation of backpay. Jurisdiction being proper under 28 U.S.C. §
1291, this court affirms.

                                         I.

      ACS provides corporate services to its parent, ALLTEL Corporation, and to
other subsidiaries. Within ACS, the Administrative Services department delivers
services such as real estate, corporate travel, mail services, and document services.
Steven A. Kavanaugh, the Vice President of Administrative Services, makes
employment decisions regarding the personnel in Administrative Services. Document
Services – the department at issue in this appeal – is the sub-component of
Administrative Services that provides document copying, distribution, and printing
services for ALLTEL and its subsidiaries.

      In July 1999, Kavanaugh and the Director of Office Services hired Desi
Ledbetter as the Customer Service Supervisor within Document Services. Ledbetter
reported to the director and was responsible for overseeing and managing the copiers,
incoming copy and print jobs, outsourced print jobs, and pre-press production. He
also maintained the Customer Services budget and supervised four employees.
Ledbetter consistently received positive performance evaluations from the director,
as well as yearly merit increases in salary.

       In February 2001, ALLTEL reorganized due to instability in the
telecommunications market, eliminating over 900 jobs, including several at ACS. The
Director of Office Services position was eliminated, with its responsibilities
distributed within Administrative Services. On February 15, Kavanaugh named
Ledbetter "acting" manager of Document Services, where he assumed the director's
duties of supervising the Production Services employees and managing the Document
Services budget. He retained his previous duties as Customer Service Supervisor.

                                         -2-
       In March 2001, Ledbetter asked Kavanaugh for additional compensation in his
new position. Kavanaugh replied that he was "acting" manager until further notice,
and that no reclassification would be authorized until a decision was made about the
future status of the Document Services department. Kavanaugh, concerned about the
declining production volume in Document Services, told Ledbetter that upper
management was discussing the possibility of outsourcing the department.

      Ledbetter did not make further inquiry until August 30, 2001, when he asked
Kavanaugh if his position could be evaluated for reclassification and a pay raise.
Kavanaugh responded that he would consider reclassification at the beginning of the
next year. After hearing no response by the beginning of 2002, Ledbetter e-mailed
Kavanaugh about the reclassification. In February 2002, Kavanaugh agreed to submit
Ledbetter's "acting" manager position to the Corporate Compensation department for
evaluation.2

       To begin the evaluation process, on February 20, 2002, Kavanaugh gave
Ledbetter approval to fill out a job evaluation form for his position. Ledbetter
completed it on February 22 and returned it to Kavanaugh. After receiving no
response for almost a month, Ledbetter asked Kavanaugh if he had received it. On
March 13, Kavanaugh said he had not found time to review it. Anxious to remove the
term "acting" from his title, on April 15, Ledbetter decided to involve Human
Resources in the reclassification process. After a series of e-mails between Ledbetter,

      2
       Corporate Compensation evaluates each position within ALLTEL to determine
the proper pay grade and salary (percentile) for the employee in the position.
Positions may be evaluated and/or reclassified by Corporate Compensation at the
request of an employee's manager when market conditions change or the scope and
responsibility of the employee's position increase. Specifically, ALLTEL's
Compensation Management Guide specifies that reclassifications usually occur due
to reorganizations, changes in market factors, or changes in technology. ALLTEL
designed the Guide to inform managers when reclassification requests should be
submitted.

                                         -3-
Kavanaugh, and Human Resources in late spring, Kavanaugh forwarded the form to
Corporate Compensation on June 14. On July 29, Ledbetter again asked Human
Resources the status of his reclassification. He did not receive a response until August
13, when he learned that Kavanaugh was still discussing the issue with Corporate
Compensation.

       On October 15, Kavanaugh informed Ledbetter that Corporate Compensation
had authorized a reclassification of his position from pay grade 13 to 15. When the
reclassification took effect on January 1, 2003, Kavanaugh recommended that
Ledbetter's salary be calculated at the 25th percentile of grade 15, or $50,050 – an
18.6% increase over his previous salary. Ledbetter responded that he believed pay
grade 16 was more appropriate, because it was the grade at which most management
positions were classified. He also requested that Kavanaugh authorize retroactive pay
to February 2001, when he became "acting" manager. Kavanaugh denied both
requests, prompting Ledbetter again to take his concerns to Human Resources. After
reviewing Ledbetter's reclassification process, members of Human Resources and
Corporate Compensation determined that Ledbetter received a fair evaluation, was
properly classified at pay grade 15, and should not receive retroactive pay.

       Ledbetter sued ACS, claiming he was paid less than other Caucasian managers
and forced to assume the title of "acting" manager for 22 months while attempting to
get reclassified. After a bench trial, the district court held that ACS intentionally
discriminated against Ledbetter by failing to reclassify his position at the time of the
reorganization in February 2001, paying him less than other Caucasian managers
between February 2001 and January 2003, and giving him the "acting" title for 22
months. As to damages, the district court determined that Ledbetter's pay grade was
properly grade 15, but ordered that it be retroactive to when he became "acting"
manager. The court awarded Ledbetter $14,421.91 in backpay, $22,000 in
compensatory damages for emotional distress, and costs and attorney's fees. Both
parties appeal.

                                          -4-
                                           II.

       On appeal, ACS argues that the district court's finding of intentional
discrimination is not factually supported by the record. This court reviews the district
court's ultimate finding of discrimination for clear error, giving due regard to the
opportunity of the district court to judge the credibility of the witnesses. Fed. R. Civ.
P. 52(a); Anderson v. City of Bessemer City, 

, 573 (1985) (presence of
discrimination is a finding of fact that cannot be set aside unless clearly erroneous).
A finding of discrimination will be overturned only if not supported by substantial
evidence, based on an erroneous construction of the law, or it is clear that the district
court has committed a mistake. Day v. Johnson, 

, 654 (8th Cir. 1997).
This court need only decide whether the record as a whole supports the ultimate
finding of discrimination. Tadlock v. Powell, 

, 546 (8th Cir. 2002) (the
McDonnell Douglas presumptions disappear upon review of a district court's
determination that discrimination has occurred).

       The district court properly applied the McDonnell-Douglas burden-shifting
analysis to determine whether ACS engaged in intentional race discrimination in its
decisions about Ledbetter. See McDonnell Douglas Corp. v. Green, 

(1972); Kincade v. City of Omaha, 

, 806 (8th Cir. 2004). The district
court found that Ledbetter had established a prima facie case of intentional race
discrimination, because he is an African-American who, while consistently receiving
positive performance reviews, was denied reclassification and a raise for 22 months,
while Caucasian managers did not face similar obstacles. See generally Davis v.
KARK-TV, Inc., 

, 704 (8th Cir. 2005). Although ACS articulated non-
discriminatory reasons for delaying the reclassification, such as uncertainty about the
future of the Document Services department and the need to cut costs following the
reorganization, the district court found these reasons unpersuasive. Specifically, it
found that other similarly-situated Caucasian employees at ACS were treated more
favorably in the ALLTEL reorganization, and that ACS failed to follow its own

                                          -5-
reclassification procedures in keeping Ledbetter at grade 13 for nearly two years after
he had assumed managerial duties.

       On appeal, ACS asserts the same arguments as raised to the district court in
order to justify its refusal to reclassify Ledbetter's position until January 2003. First,
ACS relies on Kavanaugh's testimony that he did not seek additional compensation
for Ledbetter in March 2001, because the future of the Document Services department
was uncertain at that time. The district court rejected this argument, finding that
ALLTEL's Compensation Management Guide required a different result. See Floyd
v. State of Mo. Dep't of Soc. Servs., 

, 937 (8th Cir. 1999) ("An
employer's failure to follow its own policies may support an inference of pretext").
The Guide specifies that reclassifications usually occur during reorganizations or
when an employee assumes additional job responsibilities. While members of Human
Resources and Corporate Compensation testified that the Guide was advisory, the
district court believed that this rationale left too much discretion to individual
managers like Kavanaugh, who quickly approved reclassifications for other
employees.

      The district court also found no evidence in the record or in the Guide to
support possible outsourcing as a reason to pay employees at too low a grade. ACS
disputes this finding as an impermissible attack on its business judgment. See Hutson
v. McDonnell Douglas Corp., 

, 781 (8th Cir. 1995). While a district court
may not second-guess an employer's valid, non-discriminatory employment decisions,
the court still must analyze whether the proffered reasons are a pretext for intentional
discrimination. See Moschetti v. Chicago, Central & Pac. Railroad Co., 

, 710 (8th Cir. 1997). Here, the district court properly concluded that the
outsourcing argument was pretextual. As the record supports this conclusion, this
court will not disturb it on review.




                                           -6-
      Next, ACS argues that cost-cutting measures necessitated by the reorganization
delayed Ledbetter's reclassification. Specifically, ACS contends that a number of
employees assumed additional duties without increased compensation after the
reorganization. The district court disagreed based on the language of the
Compensation Management Guide and Kavanaugh's treatment of other employees in
his department around the time of the reorganization.

       During the reorganization, Kavanaugh quickly initiated a reclassification and
pay raise for Jody Little, Manager of Contracts, who became Staff Manager of Travel
after the reorganization. In fact, her reclassification was submitted without her
knowledge and she received a pay raise approximately 11 days after Kavanaugh
forwarded the paperwork to Corporate Compensation. This contrasts with the 22
months it took Ledbetter to get reclassified. Although ACS tries to distinguish this
decision by arguing that Little was "promoted" rather than reclassified, both Ledbetter
and Little assumed additional responsibilities in a different department while retaining
their previous duties. Similarly, both employees had new departmental titles for their
positions, unlike other employees that ACS identifies as "similarly situated." While
ACS argues that Ledbetter did not assume as many additional duties as Little, the
district court found that this did not justify the refusal to reclassify Ledbetter's
position. As Kavanaugh made the decisions regarding both Ledbetter and Little, the
district court was uniquely positioned to determine whether ACS's stated reason for
the different treatment was pretextual. See Jackson v. City of St. Louis, 

,
896-97 (8th Cir. 2000) (analyzing whether employees are sufficiently similarly-
situated is easier where the employees have the same supervisor); Clark v. Runyon,

, 918 (8th Cir. 2000) (same).

       Ledbetter also identified Melissa J. Van Dell, whose position was reclassified
in July 2000 from Manager, to Staff Manager, of Furniture and Interiors. Again,
Kavanaugh was the supervisor responsible to submit the paperwork to Corporate
Compensation, who approved the reclassification and salary increase in less than a

                                          -7-
week. ACS argues that Van Dell is not similarly-situated to Ledbetter, because her
reclassification occurred before the reorganization. The district court believed,
however, that ALLTEL began expressing concern about the failing
telecommunications market around the time that Van Dell was reclassified. While the
test is rigorous for determining whether an employee is similarly-situated, the district
court did not clearly err in finding Little and Van Dell similarly-situated to Ledbetter
for purposes of determining whether Ledbetter was discriminated against. See Harvey
v. Anheuser-Busch, Inc., 

, 972 (8th Cir. 1994) (employees must be
similarly-situated in all relevant respects for proper comparison).

       ACS next argues that Ledbetter did not have enough management experience
when the reorganization occurred in order to justify a reclassification or increasing his
compensation. Importantly, when Ledbetter asked Kavanaugh about reclassification
in August 2001, he was told that he needed a few more months of management
experience before meriting a pay raise or reclassification. The district court rejected
the "inexperience" argument, finding that Kavanaugh gave him the additional duties
of a manager without increasing his compensation commensurately. In fact,
Kavanaugh gave Ledbetter a positive performance evaluation as manager in February
2002, almost a full year before his reclassification finally took effect. The district
court was particularly troubled that no other manager reporting to Kavanaugh was an
"acting" manager for any length of time, much less 22 months. The district court did
not clearly err in finding pretextual the "inexperience" rationale.

       Finally, ACS argues that giving Ledbetter the title of "acting" manager is not
an adverse employment action. An "adverse employment action" is a "material
employment disadvantage, such as a change in salary, benefits or responsibilities."
Sallis v. Univ. of Minn., 

, 476 (8th Cir. 2005). It includes decisions such
as failing to promote, or reassigning an employee to a position with significantly
different responsibilities. Forshee v. Waterloo Indus., Inc., 

, 530 (8th
Cir. 1999). While ACS argues that Ledbetter suffered no material disadvantage as

                                          -8-
"acting" manager, the district court found that he undertook new responsibilities
without additional pay, which constituted an adverse employment action. Moreover,
the district court credited Ledbetter's testimony that he readily assumed the
management position, did a good job, and was continually embarrassed by the delay
in reclassification and a salary increase. As the district court is in the best position to
make such credibility determinations, and the record supports the finding that
Ledbetter assumed additional responsibilities without receiving a raise, the district
court's findings are not clearly erroneous.

                                           III.

       ACS also appeals the district court's admission into evidence of a list of ACS
employees proffered by Ledbetter that identified each employee's position and race.
ACS argues this list is indefinite and incomplete, and therefore, not probative on
intentional race discrimination. This evidentiary challenge is reviewed for abuse of
discretion. McPheeters v. Black & Veatch Corp., 

, 1100-01 (8th Cir.
2005).

       Although the parties debate whether the employee list should have been
admitted, the district court did not rely on it in finding intentional race discrimination.
While the district court stated that the under-representation of African-Americans in
the management list was "eye-catching," the court specified that it was not persuaded
or convinced by the numbers in the list. Rather, the district court focused on the
testimony relevant to the employment decisions about Ledbetter. Accordingly, this
court finds no abuse of discretion in admitting the evidence.




                                           -9-
                                          IV.

       Both ACS and Ledbetter appeal the district court's calculation of backpay. As
this calculation involves factual determinations, this court reviews for clear error.
Hartley v. Dillard's, Inc., 

, 1062 (8th Cir. 2002).

       The district court determined that Ledbetter was entitled to backpay in the
amount of $14,421.91 – the difference between the amount that Ledbetter would have
earned if his position were reclassified to grade 15 at a penetration range3 of 26% at
the time of the reorganization, and the amount actually earned at grade 13. On appeal,
the parties agree that the district court correctly determined that Ledbetter should be
at pay grade 15, but dispute the 26% penetration range.

       The district court based its calculations on exhibits and testimony offered by
ACS that explained the penetration ranges. The 26% penetration range falls within the
second quartile of pay grade 15, representing a finding that Ledbetter was "fully
qualified" for the manager position. As Ledbetter received outstanding merit
increases in both his supervisor and manager positions, the district court found he was
performing as a "fully qualified candidate," mandating a minimum penetration range
of 26%.

       ACS argues that Ledbetter should be placed in a 14% penetration range within
grade 15, to reflect more accurately the salary increases of other employees receiving
raises during and after the reorganization. ACS also argues that Ledbetter is not "fully
qualified" for the management position, as he only received merit increases as a
supervisor. These arguments are unavailing in light of Kavanaugh's initial

      3
        The "penetration range" is the position of a salary within the pay range in
relation to the minimum and maximum of that range. Each pay grade has four
"quartiles," each of which requires an individualized determination as to where an
employee falls on the range, depending on experience.

                                         -10-
recommendation that Ledbetter be placed in a penetration range of 25% when his
reclassification took effect in January 2003. Moreover, as the district court correctly
found, Kavanaugh did authorize a merit increase for Ledbetter in February 2002 and
February 2003.

       Ledbetter argues that he deserves a 31% penetration range to account for the
merit increases he received between 2001 and 2004. He argues that he will lose the
benefit of these increases if the range is set at 26%. As the district court found,
however, merit pay is distinct from salary and should not affect the employee's range
following reclassification. Given the specific findings in the record, the district court
did not commit clear error in calculating the backpay award.

                                            V.

       Finally, ACS appeals the district court's $22,000 award of compensatory
damages, arguing it is not supported by competent proof of a genuine injury. See
Carey v. Piphus, 

, 264 n.20 (1978). This court reviews the district
court's compensatory damage award for clear error, giving due regard to credibility
determinations of the district court. See Delph v. Dr. Pepper Bottling Co., 

, 358 (8th Cir. 1997); see also Hall v. Gus Construction Co., 

, 1017
(8th Cir. 1988) ("In a bench trial, ascertaining the plaintiff's damages is a form of fact-
finding that can be set aside only if clearly erroneous").

       ACS emphasizes that the only evidence supporting Ledbetter's request is his
testimony. However, a plaintiff's own testimony, coupled with the circumstances of
the case, can sustain the burden of establishing emotional suffering. See Kim v. Nash
Finch Co., 

, 1065 (8th Cir. 1997). Medical or expert testimony is not
required to establish mental anguish. See 

argues that Ledbetter
offered no evidence of severe emotional distress that warrants compensatory damages,
Ledbetter testified that he felt humiliated and demoralized in having to tell his friends

                                           -11-
and family members that he was denied a pay raise after promotion to the position of
"acting" manager. The district court specifically stated that it was "moved by the
Plaintiff's compelling testimony that demonstrated his pain and agony as a result of
his treatment and in the manner in which his title of 'acting' diminished his confidence
and credibility." The court was also persuaded by Ledbetter's vigorous efforts to
correct the situation, finding "it does not take an MBA to know that, at least in most
instances, a title of 'acting' reflects an uncertainty of managerial confidence,
particularly when coupled with no raise in pay." The district court's precise factual
findings and credibility determinations are not clearly erroneous, and thus, the award
of compensatory damages is upheld.

                                          VI.

      The judgment of the district court is affirmed.



                        ______________________________




                                         -12-