Full opinion text
MEMORANDUM ORDER AND OPINION REGARDING DEFENDANT’S AMENDED RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW, AND, ALTERNATIVELY FOR NEW TRIAL AND FOR RE-MITTITUR OF ALL AMOUNTS AWARDED BENNETT, Chief Judge. TABLE OF CONTENTS I.FACTUAL AND PROCEDURAL BACKGROUND.............................924 A. Procedural Background................................................924 B. Factual Background...................................................925 1. Overview of Aramark ..............................................925 2. Employment of Anita Lopez ........................................926 3. Employment of Maricela Villalpando................................929 II.LEGAL ANALYSIS........................................................930 A. Arguments Of The Parties ................................ 930 1. The defendant’s arguments............................ 930 2. The plaintiffs’ arguments in resistance..............................933 3. The defendant’s reply..............................................936 B. Motion For Judgment As A Matter Of Law ..............................937 1. Standards for judgment as a matter of law...........................937 2. Federal and Iowa law claims.......................................938 3. The retaliation claims .............................................939 a. Failure to engage in protected activity ..........................940 b. Failure to prove adverse employment action ........... 940 c. Failure to prove causal connection................... 943 d. Proffer of legitimate, nondiscriminatory reason and pretext.......943 4. The hostile work environment sexual harassment claims..............944 a. Actionable harassment.........................................945 b. Applicability of the Ellerth/Faragher affirmative defense .........947 c. Iowa law.......... 948 5. The emotional distress damages ....................................950 6. Villalpando’s entitlement to back pay damages.......................952 7. The punitive damages..............................................954 a. Standards......................................................954 b. Malice or reckless indifference by managerial employee...........957 c. Aramark’s good-faith defense................!..................963 C. The Amount Of The Punitive Damages Award...........................966 1. Excessive verdict..................................................966 2. Statutory damages cap provision....................... 968 3. Constitutionality................ 968 a. Standards .■....................................................968 b. Analysis under the Gore guideposts.............................969 i. Reprehensibility..........................................969 ii. Proportionality...................... 971 iii. Comparable civil or criminal penalties.......■...............971 iv. Resolution ...............................................972 4. Remittitur........................................................972 D. New Trial............................................................973 1. Standards under Rule 59(e).........................................973 2. The merits........................................................974 III.CONCLUSION 976 Following a five-day jury trial in this hostile work environment sexual harassment and retaliation case brought by two former employees of a local provider of uniform and career apparel, the jury returned a verdict in favor of the two individual plaintiffs. The jury awarded both plaintiffs past emotional distress and punitive damages on both their hostile work environment sexual harassment and retaliation claims. A number of post-trial motions followed the jury’s disposition of this case. Not surprisingly, in light of the rather generous verdict, the defendant seeks judgment as a matter of law on both the plaintiffs’ hostile work environment sexual harassment and retaliation claims and the corresponding awards of punitive damages. In the alternative, the defendant seeks a new trial on the issue of punitive damages and/or remittitur of all amounts awarded to the plaintiffs. Predictably, the plaintiffs resist the defendant’s motion on all grounds. I. FACTUAL AND PROCEDURAL BACKGROUND A. Procedural Background Plaintiffs Anita Lopez (Case No. C03-4015-MWB) and Maricela Villalpando (Case No. C03-4030-MWB) filed separate law suits against their former employer, defendant Aramark Uniform & Career Apparel, Inc., (hereinafter “Aramark” or “defendant”) each asserting claims of hostile work environment sexual harassment, quid pro quo sexual harassment, and retaliation for complaining about sexual harassment. In addition, Villalpando contended she was constructively discharged by Aramark as the result of sexual harassment and retaliation. By order dated March 18, 2004 (Doc. No. 19), the court consolidated the plaintiffs’ separate lawsuits for trial. A five-day jury trial commenced on October 31, 2005. The jury returned a verdict in favor of both plaintiffs on their claims of hostile environment sexual harassment and retaliation (Doc. No. 60). More specifically, with respect to Anita Lopez, the jury found Lopez proved her hostile environment sexual harassment claim and awarded her $30,000.00 in past emotional distress damages and $250,000.00 in punitive damages. In addition, the jury found in Lopez’s favor on her claim of retaliation and awarded her $5,000.00 in past emotional distress damages and $10,000.00 in punitive damages. With respect to Maricela Villalpando, the jury awarded $30,000.00 in past emotional distress damages, $10,000.00 in backpay and $250,000.00 in punitive damages on her hostile environment sexual harassment claim. In addition, Villalpando received an award of $5,000.00 for past emotional distress and $10,000.00 for punitive damages with respect to her claim of retaliation. On November 16, 2005, Aramark filed a Motion To Contact Jurors (Doc. No. 64) in order to ascertain the jurors’ opinions and impressions of the trial. The court granted this motion with respect to counsel for both parties on November 28, 2005 (Doc. No. 69). Aramark further filed a Renewed Motion For Judgment As A Matter Of Law And, Alternatively For New Trial And Remittitur Of All Amounts Awarded (Doc. No. 65) on November 18, 2005. Pursuant to the order of this court, although the defendant’s motion was to be timely filed, the defendant was allotted additional time in which to file its brief, in order to account for the time that would be required to obtain a trial transcript from the court reporter. An Amended Motion was filed on November 21, 2005 (Doc. No. 68). On December 1, 2005, the plaintiffs filed a Fee Application (Doc. No. 70). The defendant filed a resistance to the plaintiffs’ Fee Application on December 30, 2005. This court reserved ruling on the plaintiffs’ Fee Application until after the resolution of the post-trial motions and the conclusion of the case (Doc No. 75). On January 10, 2006, the defendant filed a Supplemental Motion For An Evidentia-ry Hearing To Determine Juror Misconduct And For New Trial (Doc. No. 82). On February 2, 2006, the plaintiffs filed them resistance to the defendant’s motion (Doc. No. 87). On this same date, the defendant filed its Memorandum For Judgment As A Matter Of Law, And, Alternatively For New Trial, And For Re-mittitur Of All Amounts Awarded (Doc. No. 86). On February 8, 2006, the defendant filed its reply to the plaintiffs’ resistance to its Supplemental Motion For An Evidentiary Hearing (Doc. No. 89). On February 22, 2006, this court denied the defendant’s Supplemental Motion For An Evidentiary Hearing To Determine Juror Misconduct And For New Trial, Lopez v. Aramark Uniform & Career Apparel, Inc., 417 F.Supp.2d 1062 (N.D.Iowa 2006). Specifically, this court determined the defendant had failed to demonstrate it was entitled to an evidentiary hearing on the matter. Thereafter, on March 3, 2006, the plaintiffs filed their brief in support of their resistance to the defendant’s Motion For Judgment As A Matter Of Law, And, Alternatively For New Trial, And For Re-mittitur Of All Amounts Awarded (Doc. No. 93). The defendant filed its reply on March 14, 2006 (Doc. No. 100). As the parties have each filed briefs in support of their respective positions and neither has requested oral argument, the court deems this matter fully submitted and will proceed to address the merits of the parties’ respective arguments. B. Factual Background 1. Overview of Aramark Aramark is a leading provider of food and facilities management services, as well as uniform and career apparel. The Sioux City, Iowa, facility is operated by Aramark Uniform Services, which is headquartered in Burbank, California and is part of Ara-mark Uniform & Career Apparel. The Sioux City facility is responsible for laundering, pressing and organizing linens, table cloths, napkins, aprons and bar towels from myriad customers. Once the items are processed, the facility then redistributes the product to its customers. At all times relevant to this lawsuit, Steve Donly served as president of Aramark Uniform Services. Four regional vice presidents led operations. Sioux City was encompassed in the “Northern Group,” of which Tom Janssens served as the group vice president. With respect to the Sioux City facility, Victor Herzberger served as the general manager throughout the plaintiffs’ employment. Herzberger, as general manager, was responsible for approximately eighty personnel employed at the Sioux City location, as well as another sixteen employees located in Sioux Falls, South Dakota. The Sioux City location was divided into three main components: service, production and the office. In addition, certain route representatives who were responsible for meeting with customers were associated with the Sioux City location. Plaintiffs Lopez and Villalpando both worked at Aramark’s Sioux City, Iowa, facility in the production department. The production division was managed by Jay Wiseeup, who served as plant or production manager. He was supported by two supervisors — Victor “Butch” Tomoson and Greg O’Connor. O’Connor and Tomoson each supervised approximately 22 employees. Although Wiseeup was responsible for the entire production operation, O’Con-nor and Tomoson assisted Wiseeup by basically managing their specific areas within the production department. This included hiring production employees, handling daily job assignments, disciplining employees and supervising and managing the personnel within each of their respective sections. The decision to terminate an employee, although initiated by the supervisors, required Wisecup’s approval. Both of the plaintiffs were hired and supervised by Tomoson in the production division. The production employees had varying responsibilities. For example, some employees would iron and fold table linens, others would fold laundered towels and package them in bundles. The easiest job involved sorting different colored napkins. Many, if not most, of the individuals hired and supervised by Tomoson were Hispanic women, some who spoke little to no English, and many of whom were illegal. With respect to Equal Employment Opportunity (EEO) compliance, Aramark posted its EEO policy, which specifically addressed sexual harassment and set forth an internal complaint procedure. Similarly, the company also posted a “5 in 1” poster, which referenced various legal obligations, including EEO. Further, Ara-mark Uniform Services’ Employee Handbook for Non-Union Employees also set forth a detailed harassment policy and complaint procedure. During the plaintiffs’ tenure, a training session on the Ara-mark 1-800 Employee Hotline was also conducted. During this session, which both plaintiffs attended, a videotape was shown to all employees that described the features of the employee hotline. Essentially, the hotline was implemented in order to provide employees an avenue to report their concerns confidentially to an individual outside of their place of employment. The video was only shown in the English language, despite the fact that some workers spoke little to no English. In addition, the video was shown on a small, 13-inch television set. Many of the employees were talking loudly during the video and not paying attention, making the video virtually inaudible and unobservable. Following the video, no additional discussion ensued and the employees returned immediately to work. Before the training was concluded, the employees were distributed a 1-800 hotline reference card, which also summarized the facets of the hotline and listed the number. 2. Employment of Anita Lopez With respect to plaintiff Lopez, Tomoson conducted her interview and hired her as an iron pressing machine operator on November 19, 2001. Her employment was terminated on March 19, 2002. During her four-month tenure at Aramark, Lopez missed 21 days of work. Nine of these days occurred between January 1, 2002, and February 11, 2002. Immediately after she was hired, Lopez began observing what she considered to be inappropriate sexual conduct occurring at Aramark. On her first day of work, she witnessed Tomo-son simulate a sexual act behind another coworker, Rocio Orozco. Tomoson came up behind Orozco and rubbed his groin on her buttocks. Orozco laughed at Tomo-son’s conduct. Lopez told another coworker, Paulina Sandoval, about what she had witnessed and Sandoval relayed to Lopez that those kind of things “happen here.” Lopez observed that Tomoson spent a great deal of time with his female employees at the irons and that he routinely touched the female employees’ buttocks and waists, and occasionally picked them up from behind. Lopez overheard him tell numerous dirty jokes, including jokes about his wife. On one occasion, Lopez heard Tomoson inform his employees that his wife did not have large breasts like they did. Lopez also saw Tomoson engage in a form of “dirty dancing,” in which it appeared as if he was having sex behind his female employees. On one specific occasion, Lopez witnessed Tomoson dirty dance behind Villalpando and place his hand on her shoulder. Additionally, every Thursday, Tomoson would make reference to a yellow polka dot bikini and identify, by name, the employee who was allegedly going to put on the bikini for him. On another occasion, Lopez observed Tomo-son dancing around the office in front of his employees while wearing a bikini. To-moson also directly harassed Lopez. He blatantly leered at her breasts three out of five days of the week. On one occasion, he announced to the other workers that Lopez was going to wear a yellow polka dot bikini and then laughed at this prospect, along with the rest of the coworkers. On another occasion, Lopez bent over to pick up a napkin she had dropped. While she was bent over, Tomoson hit her buttocks with a brown paper bag that contained a “to-go” food container. Lopez stood up and said, “Hey, hey, hey,” to Tomoson. Tomoson replied, “Don’t stick that ass out at me like that,” laughed and walked away. On yet another occasion, Tomoson pinched Lopez’s left side, just above her hip region. Lopez told Tomoson, “Don’t.” Again, he laughed and walked away. On the day before his birthday, Tomoson announced that Lopez was going to wear a bikini for his birthday the following day and stated that it would be a “nice present” to him. Lopez also witnessed Tomoson behave similarly with the union representative, Vicky Freeman. For example, Tomoson dirty danced with Freeman, whistled at her, told dirty jokes to her and talked dirty to her. In light of this relationship, Lopez felt she could not go to Freeman to complain about Tomoson’s conduct. To-moson’s conduct angered Lopez and, typically, when such conduct occurred, she flashed him evil looks and walked away. Lopez’s resistance to Tomoson’s behavior polarized her from the remainder of the employees who acquiesced to Tomoson’s advances. The coworkers who did not object to Tomoson’s actions were often referred to as his “pets,” and were permitted to leave for break early and return late. Additionally, Tomoson’s “pets” were assigned easier job duties. Particularly illustrative of this environment was an incident that occurred sometime in December 2001. After Lopez received a relatively “easy” job task, Tomoson said to her, “See how easy you can have it?” Lopez replied, “I am not here to play; I’m here to work.” Immediately after this interaction, Tomo-son assigned Lopez to a substantially harder assignment and tasked one of his “pets” to the easier job. Tomoson’s conduct created a rift between his “pets” and the employees, like Lopez, who objected to his behavior. Workplace friction ensued. On one occasion, when both Tomoson and Wisecup were present, Lopez heard Yesenia Espinoza, one of Tomoson’s pets, berate Villalpando with an epithet in Spanish that roughly can be translated to “fuck your mother.” Lopez also saw Villalpando get pushed by another coworker. Lopez, as a witness, filed an incident report in which she utilized the term “breast.” The next day, Tomoson bumped Lopez on the hip with his hip and indicated he read her report and thought her use of the word “breast” was funny. Other incidents attributing to Lopez’s dissatisfaction continued to occur throughout her employment. For instance, at some point, Lopez became aware that Vil-lalpando had utilized the 1-800 hotline, and that others at Aramark, including Tomo-son, were also aware of this fact, despite Aramark’s representation to its employees that the hotline was confidential in nature. Lopez overheard Tomoson tell Espinoza and Jessica Coronado, another one of his pets, that Villalpando would be returning to work. When Espinoza and Coronado expressed concern about working with Vil-lalpando, Tomoson reassured them, “Don’t worry about it. We have plans for Maricela.” Due to the environment at Aramark, Lopez became extremely depressed. Although Lopez had problems with both post-traumatic stress disorder and major depressive disorder prior to her job at Aramark, her Aramark experience greatly magnified and aggravated these conditions. Lopez became extremely depressed every Sunday before she had to go to work and cried daily. She felt belittled and had low self-esteem as a result of Tomoson’s conduct, which often brought back memories of her childhood. Lopez was put on anxiety medication and continued to seek mental health counseling. On the Friday before she was terminated, Lopez wore a shirt with “Tweety Bird” on the front. Tomoson asked what the name of the bird was on her shirt. Orozco informed him the bird’s name was Tweety Bird, to which Tomoson replied, “Not the way that she is wearing it, it’s not. It’s Big Bird.” As Tomoson made this comment, he was looking at Lopez’s breasts. Lopez turned around and walked away. Later on that same Friday, Lopez, Orozco, and Espinoza were running an iron. Or-ozco told Lopez to shake her chest, which Lopez indicated she refused to do. As she turned away, she saw Tomoson grinding his hips behind her. Upon seeing Tomo-son, Lopez screamed and Tomoson and the other coworkers laughed. That evening, she informed her husband that she wanted breast reduction surgery because she was tired of being teased. The following Monday, March 18, 2002, Lopez called in sick to work. The next day, Tuesday, she had a friend who was not associated with Aramark, call in to report Lopez had a doctor’s appointment and was unable to come into work. Approximately ten minutes later, Lopez spoke with Tomoson, who informed her she was fired. On March 20, 2002, Lopez went to Ted Colt, the business agent for the. union who handled grievances and related union business with respect to Ara-mark. Lopez told Colt she was discharged for absenteeism and that she wanted her job back. Colt inquired as to the reason for Lopez’s numerous absences. Lopez indicated she had been harassed, and a grievance was subsequently prepared. As soon as Herzberger received the grievance from the union, he notified the group vice president of the northern group, Janssens. In addition, Herzberger telephoned Mike Grabowski, regional director of human resources. Herzberger then contacted Colt to coordinate a meeting to investigate the allegations. As part of the investigation procedure, Lopez was interviewed within a week of her termination. Freeman, Colt, and Scott Utech were present at Lopez’s interview, along with Wisecup and Herz-berger. Wisecup and Herzberger conducted the interview as the representatives of the company and focused their questions on Lopez’s claim of sexual harassment. Lopez identified three coworkers who allegedly were in a position to observe the conduct of which she complained. Herzberger interviewed at least two of the three coworkers whom Lopez identified as witnesses, but no one corroborated Lopez’s allegations. Tomoson was also interviewed and denied the allegations. Herzberger then reported the results of his investigation to Grabowski. Based on the results of the investigation, Grabowski concluded that Lopez’s claims were unsubstantiated because they could not be corroborated by Tomoson or any of Lopez’s witnesses. Likewise, Colt concluded Lopez had a very weak case. Although Colt was prepared to take the case to arbitration, such proceedings were discontinued upon Lopez’s advisement to the union that she did not wish to return to work for Aramark. Thereafter, on May 31, 2002, Lopez filed her charge of discrimination with the Iowa Civil Rights Commission (“ICRC”). To-moson was never further investigated or disciplined by the company, nor was additional sexual harassment training conducted following Lopez’s termination. 3. Employment of Maricela Villal-pando Villalpando’s Aramark experience was similar to Lopez’s. She began working for Aramark in May 2001 and remained employed by the company until April 17, 2002. Throughout her employment, Villal-pando was also supervised by Tomoson and assigned to work on the irons. Lopez was one of her coworkers during the four months Lopez was employed by Aramark. Shortly after Villalpando began working at Aramark, she likewise began to notice To-moson’s inappropriate conduct. She observed Tomoson associating with the female employees by the irons and saw him frequently dirty dance behind the female employees and heard him tell dirty jokes and refer to breasts. Tomoson often joked specifically about Villalpando’s breasts to other coworkers. He would also frequently tell her that she had “big breasts,” and describe how she would look in a bikini with her “big boobs.” Villal-pando told him not to say things like that to her. Tomoson also attempted to dirty dance with Villalpando. On one occasion, he placed his hand on her shoulder and tried to dirty dance behind her. Villalpan-do turned around and told Tomoson to quit. Tomoson told her not to get upset, laughed, and told two other coworkers about Villalpando’s reaction. Tomoson also compared Villalpando to his wife. He told Villalpando that because his wife had small boobs, he would tell her she should get big ones because he liked big breasts and liked to see them move. Other coworkers who overhead this interaction laughed along with Tomoson. Villalpando also witnessed the occasion where Tomo-son wore a bikini at work. She further witnessed Tomoson pick coworkers up and shake them so he could see their breasts move. At one point, Tomoson attempted to pick Villalpando up and grabbed her underneath her breasts from behind. Vil-lalpando became angry so Tomoson instead picked Espinoza up and said, “Look, Yesenia doesn’t get mad.” Another incident occurred when Villalpando was wearing a yellow Tweety Bird shirt. Similar to what happened to Lopez, Tomoson asked Villalpando what was on her shirt and she replied, “Tweety,” to which Tomoson countered in Spanish, “No, it’s big boobs.” Villalpando repeatedly complained to Wi-secup and Freeman about Tomoson’s behavior, and although they assured her they would take care of things, nothing changed at Aramark. Apparently, after Villalpando objected to Tomoson’s behavior, he began treating her differently by giving her more difficult job assignments. In addition, if she had to call in to work, Tomoson would hang up on her. Villal-pando’s objections to Tomoson’s conduct also affected her relationships with her coworkers. The 'coworkers designated as Tomoson’s “pets” teased Villalpando and talked to her in a rude, aggressive manner. They began calling her “Chuekie with the big boobs.” Villalpando was ostracized by Tomoson’s pets, and at some point, a physical altercation occurred between Villalpando and Coronado and Espinoza, where Coronado and Espinoza scratched Villalpando. On another occasion, in January of 2002, Coronado pushed Villalpando. Villalpando went to the hospital following this incident for a resulting back injury. Villalpando was aware of Ar-amark’s 1-800 hotline and called it two times on the same day, once in English and then again in Spanish, to complain about Tomoson’s and her coworkers’ behavior. Although Aramark touted the confidential nature of the hotline, it became apparent to Villalpando when she returned to work that her coworkers knew she had called the hotline. One coworker told Villalpando that someone had called the hotline and that everyone knew at the plant. Coronado and Espinoza told Villal-pando they were upset with her because she had called the hotline. Following her back injury, Villalpando was restricted by her doctor to light duty. She would provide Tomoson with notes from her doctor. Tomoson would angrily “snatch” the notes out of her hand and send her to work without providing her an opportunity to explain or discuss the situation. Often,, Tomoson would refuse her requests for light duty. Similar to Lopez, she became extremely depressed and experienced daily crying spells. She degenerated from a generally happy person to a person who was sad all the time. She became anxious, was frequently sick and hospitalized. The environment at Ara-mark eventually caused Villalpando f-o quit her job on April 17, 2002. Her troubles worsened after she lost her job at Ara-mark because she began to fall behind on bills. Due to her lack of financial stability, Villalpando began fighting with her husband, further compounding her depressive state. One week after Villalpando terminated her employment, she went to speak with Wisecup in order to ask for her job back because she needed the money. Wi-secup told her to leave, and Villalpando viewed herself as being fired. Subsequently, on May 31, 2002, Villalpando filed charge of discrimination with the ICRC. Villalpando was unable to secure new employment, although she applied at numerous places, until November of 2003 when she was hired by Curly’s Food, Inc. II. LEGAL ANALYSIS A. Arguments Of The Parties 1. The defendant’s arguments The defendant raises myriad arguments in support of its motion for judgment as a matter of law and challenges numerous aspects of the plaintiffs’ claims. First, the defendant argues that both plaintiffs failed to establish a prima facie case of retaliation because neither Villalpando nor Lopez (1) engaged in a protected activity, or (2) suffered an adverse employment action. To this end, the defendant contends the plaintiffs failed to complain about or challenge any perceived illegal action. Therefore, the defendant contends the plaintiffs logically could not have been the target of retaliation since there was nothing to retaliate against. Furthermore, the defendant argues that neither plaintiff proved an adverse employment action was taken against her. The defendant asserts that although the evidence suggests Lopez and Villalpando were assigned to the “harder” jobs in the production department, such alleged changes in work assignments are insufficient because they constitute only a mere inconvenience. With respect to Vil-lalpando, the defendant contends she quit her job of her own volition. Thus, the defendant asserts this was not an adverse employment action. Further, with respect to Lopez, the defendant avers it proffered a non-retaliatory reason for the alleged reason by virtue of Lopez’s excessive absenteeism. In light of the exorbitant number of days Lopez was absent from work, the defendant contends she failed to meet her burden to show Aramark’s non-retaliatory reason was pretextual. The defendant next claims the plaintiffs failed to establish they were subjected to a hostile work environment in violation of Title VII. Specifically, the defendant claims neither plaintiff established the fourth element of a hostile work environment claim — that the harassment affected a term, condition or privilege of employment. According to the defendant, neither plaintiff established they were subjected to an environment that was objectively hostile because they failed to demonstrate the harassment was severe or pervasive, as is required to support a sexually hostile work environment claim. While the defendant concedes the plaintiffs’ allegations may be indicative of boorish, unprofessional and immature behavior, the defendant contests the fact that such allegations rise to the level of actionable harassment. In addition, the defendant argues neither Lopez nor Villalpando proved a tangible employment action was taken against her. Thus, the defendant claims the Ellerth/Faragher affirmative defense prevented liability from attaching to Aramark because the company had an established anti-harassment policy and the plaintiffs unreasonably failed to take advantage of the preventive opportunities established therein. The defendant raises these very same arguments with respect to the plaintiffs’ claims under the Iowa Civil Rights Act (“ICRA”). The defendant points out that, generally, retaliation claims under the ICRA are evaluated under the same standards as federal retaliation claims. Similarly, the defendant argues a hostile work environment sexual harassment claim under the ICRA is analyzed the same way as under Title VII, with only one exception— the Iowa courts have never adopted the Ellerth/Faragher model for vicarious liability. Instead, at least according to the defendant, under Iowa law, the employer’s liability for sexual harassment perpetrated by supervisors or coworkers is dependent upon whether the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action. This element, avers the defendant, has not been established by the plaintiffs because the defendant was not made aware of the harassment until after the plaintiffs’ employment was terminated. In the alternative, the defendant attacks the damage awards provided to both plaintiffs. Specifically, with respect to the damages awarded for emotional distress, the defendant contends Lopez and Villal-pando presented insufficient evidence to sustain an award of emotional distress damages. The defendant avers the testimony presented by both plaintiffs was vague and lacked credibility. Further, the defendant contends it proffered evidence that both plaintiffs were having emotional problems prior to their employment at Ar-amark. Thus, the defendant argues the evidence shows that both Lopez and Villal-pando had other stressors and past trauma in their lives that was primarily responsible for the plaintiffs’ emotional distress. The defendant next attacks Villalpando’s award for back pay damages. The defendant points out that Villalpando testified she obtained new employment in November of 2003, and that the benefits she receives at her new place of employment are better than the benefits she received during her tenure at Aramark. The defendant contends the jury’s award of $18,000 in back pay damages fails to take into account Villalpando mitigated her damages and was able to obtain a job with higher pay and better benefits. Finally, the defendant requests this court enter judgment as a matter of law with respect to the jury’s award of punitive damages to both plaintiffs. The defendant contends the evidence presented at trial by the plaintiffs fails to establish that Ara-mark acted with malice or reckless indifference to the plaintiffs’ rights. With respect to Lopez, the defendant avers the evidence presented during trial establishes that once Aramark received Lopez’s grievance subsequent to her termination, the company conducted a thorough investigation of the claim, but Lopez’s allegations could not be substantiated. With respect to Villalpando, the defendant argues the evidence presented at' trial compels the conclusion that Villalpando never complained to the management regarding To-moson’s conduct. The defendant points out that Villalpando’s testimony at trial that she complained to Wisecup is at odds with her deposition testimony in which she represented she couldn’t remember if she complained to anyone. Additionally, although Villalpando testified she called the 1-800 hotline to report Tomoson’s conduct, the defendant highlights the fact that Vil-lalpando’s testimony contradicts Lopez’s testimony that Villalpando simply called to report that certain coworkers were working illegally. Further, the defendant relies on Herzberger’s testimony that no one called the 1-800 number to complain about sexual harassment, but did call to complain to report that Tomoson was sleeping in his truck during work. Thus, the defendant contends the only logical conclusion that can be arrived at from these facts is that Villalpando never actually made a complaint. Accordingly, the defendant contends there is not sufficient evidence of malice on behalf of Aramark because it promptly investigated the only complaint it received. Second, with respect to the conduct engaged in by Tomoson, the defendant argues punitive damages for his conduct cannot be imputed to the company because Tomoson was not serving in a “managerial capacity,” as is required by the Supreme Court’s decision in Kolstad v. American Dental Ass’n, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). Rather, the defendant avers Tomoson was merely a front-line supervisor, with very little discretion of his own, and that his title is not dispositive of the issue under Kolstad. The defendant specifically points out that although Tomoson had the authority to hire employees, he did not have the authority to fire anyone without the approval of Wisecup. Finally, the defendant argues an additional and independent basis exists for setting aside the punitive damages — namely, that Aramark made good faith efforts to comply with Title VII. Specifically, the defendant contends the evidence adduced at trial demonstrated Aramark had established procedures to address complaints of workplace harassment. In support of this assertion, Aramark points out that the nonunion employee handbook contained a nondiscrimination policy, an EEO poster was hung in the facility, and that training with respect to the 1-800 hotline was conducted. Under Kolstad, the defendant asserts this is enough to relieve it of imputed liability for Tomoson’s conduct, which was contrary to the procedures established by Aramark. In the event judgment as a matter of law is not granted, the defendant alternatively requests a remittitur of all amounts awarded. With respect to the punitive damages, the defendant claims it has been subjected, to a miscarriage of justice because the award was grossly excessive in light of the evidence presented at trial. Specifically, the defendant implies that Vil-lalpando testified falsely due to inconsistencies between her trial testimony and her responses on her ICRC questionnaire and her deposition testimony. The defendant further asserts the punitive damages are inconsistent with the guideposts established by the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), regarding the constitutionality of punitive damages. As such, the defendant contends due process mandates the punitive damages awards be reduced so that they comport with due process. With respect to the compensatory damages awarded to the plaintiffs, the defendant avers the awards should be remitted because the evidence supporting the awards is insufficient, primarily because the evidence supporting the awards was based on the plaintiffs’ testimony. The defendant contends the plaintiffs’ testimony was vague and largely uncorroborated. Therefore, the defendant argues a reduction in the emotional distress damages awarded the plaintiffs is warranted. The defendant further contends Villalpando’s award of back pay should be remitted because the evidence at trial demonstrated she secured a more lucrative position following her discharge from Aramark. The defendant’s final argument is that a new trial should be granted due to Villal-pando’s false testimony. The defendant contends the inconsistencies between her trial testimony and her deposition testimony and responses on the ICRC questionnaire indicate she was untruthful to the jury and that her testimony impacted the punitive damages awarded in the case. The defendant points out that, during trial, Villalpando’s testimony was that she complained to Wisecup and Freeman but her complaints were never addressed. However, previously, during her deposition, Villalpando indicated she did not remember if she complained to anyone and her response on her ICRC questionnaire indicates she did not complain to anyone because she was afraid of Tomoson’s response. Such improprieties, contends the defendant, warrant a new trial in this case on both the issue of liability and damages. 2. The plaintiffs’ arguments in resistance Predictably, the plaintiffs resist all aspects of the defendant’s motion for judgment as a matter of law. With respect to their retaliation claims, the plaintiffs argue they engaged in the most basic form of protected activity when they told Tomoson to stop his offensive conduct. The plaintiffs assert the record establishes that they objected to Tomoson’s behavior on numerous occasions. In addition, plaintiff Villal-pando argues that the record supports the conclusion that she not only called the 1-800 hotline to report Tomoson’s conduct, but that she also complained repeatedly to Wisecup and Freeman on numerous occasions. Thus, the plaintiffs assert the defendant’s motion in this aspect is without merit. Second, the plaintiffs assert that they both proved the existence of an adverse employment action, contrary to the defendant’s assertions. With respect to Lopez, she points out that it is undisputed she was terminated. Similarly, Villalpan-do contends her constructive discharge is sufficient to constitute an adverse employment action. Further, both plaintiffs argue the record supports the conclusion that Tomoson’s assignment of materially harder work duties and significantly less favorable treatment suffices to demonstrate an adverse employment action. Finally, the plaintiffs argue they produced an abundance of evidence demonstrating a causal connection between the protected activity and the adverse employment action. As such, the plaintiffs contend judgment as a matter of law is not appropriate with respect to their claims of retaliation. The plaintiffs likewise contend sufficient evidence was presented during trial to support the jury’s finding that Lopez and Villalpando were subjected to a hostile work environment. The plaintiffs argue that the evidence taken in a light most favorable to them establishes that they were subjected to a work environment where Tomoson would stare at their breasts on a regular basis, make lewd comments about the size of his workers’ breasts, fondle his employees, dirty dance with employees and make comments about how his coworkers would look if they were wearing a bikini on a frequent and regular basis. The plaintiffs contend that the defendant’s arguments are premised upon Tomoson’s testimony at trial, and essentially would require this court to make a credibility determination, a determination that is inappropriate under Rule 50(b)’s heightened standards. Thus, the plaintiffs contend they have sufficiently proved the work environment at Aramark was objectively hostile. In addition, the plaintiffs contend the defendant is not entitled to rely upon the Ellerth/Faragher affirmative defense because both Lopez and Villalpan-do were subjected to an adverse employment action. Alternatively, even if the defendant is entitled to assert this defense, the plaintiffs assert the defendant has not met its burden of proof. Rather, the plaintiffs argue that the jury was entitled to disregard Aramark’s evidence in support of the two elements of its affirmative defense — that it exercised reasonable care to prevent and correct any sexual harassment and the plaintiffs unreasonably failed to take advantage of the employer’s corrective opportunities. The plaintiffs highlight the fact that no one in the Sioux City Aramark plant was trained specifically on sexual harassment in the workplace. Further, Wisecup did not know who was responsible for such training at the Sioux City plant. In addition, the plaintiffs contend they tried to take advantage of Ara-mark’s corrective opportunities by making Tomoson aware his conduct was offensive. Further, Villalpando contends she complained to Wisecup on numerous occasions and called the 1-800 hotline, but to no avail. As such, the plaintiffs argue the defendant failed to prove its Ellerth/Far-agher affirmative defense. With respect to their claims under the ICRA, the plaintiffs first argue that since their respective damages awards are beneath Title VII’s cap on damages, no damages need to be allocated to their Iowa claims. Nevertheless, the plaintiffs assert their Iowa claims are meritorious for the same reasons as their federal claims. With respect to the final element of a hostile environment claim under Iowa law — whether the defendant knew or should have known of the harassment and failed to take prompt action — the plaintiffs argue Wisecup knew or should have known of the harassment based upon Villalpan-do’s repeated complaints and his presence during and observation of some of the offending conduct. Accordingly, the plaintiffs contend judgment as a matter of law should not be entered with respect to their claims under the ICRA. The plaintiffs further contend the damages awarded by the jury are supported by the evidence. Specifically, with respect to the emotional distress damages awarded by the jury, the plaintiffs assert that expert testimony is not a prerequisite to an award of emotional distress damages. Both plaintiffs argue they testified with specificity with respect to the symptoms that resulted from the hostile environment and retaliation. Both plaintiffs experienced depression and crying spells. Villal-pando’s father testified she became anxious, kept ending up in the hospital and was sick a lot. Likewise, Lopez’s counsel- or, Kreimheld Oudheusden, testified at length regarding how the environment at Aramark aggravated her depressive disorder and post-traumatic stress disorder. This evidence is sufficient, aver the plaintiffs, to support their respective awards of emotional distress damages. With respect to Villalpando’s back pay award, Villalpando argues that Aramark’s assertions fail to recognize that she is entitled to lost wages and benefits for the time frame between the date she was constructively discharged and the date she commenced her new employment. In light of the fact Villalpando did not secure such employment until almost one year after she was discharged from Aramark, Villal-pando contends the award of back pay should be affirmed. Finally, the plaintiffs assert their respective punitive damages awards should be sustained. The plaintiffs first argue the evidence unequivocally establishes To-moson’s managerial capacity. Tomoson had the ability to hire, and although he “technically” lacked the ability to fire, there is no evidence in the record Wisecup did anything more than rubber-stamp To-moson’s recommendations as to termination of employees. Second, the plaintiffs argue Tomoson acted with sufficient malice or reckless indifference. They assert To-moson was aware his actions were unwelcome, and that he continued to subject them to harassing conduct and punished them for not being willing participants. Additionally, the evidence indicates that Wisecup knew of the harassment based upon Villalpando’s complaints and that he failed to act. Further, Villalpando’s complaints to the 1-800 hotline were also never investigated. Additionally, the plaintiffs contend Aramark’s good faith defense fails. They point out that Tomoson had never been given any specific' training on sexual harassment and was unsure if there was a policy and that Wisecup had likewise received very little training on sexual harassment. Further, although the 1-800 hotline video was shown, the plaintiffs contend the words “sexual harassment” were never mentioned and that it was shown on a small television set and that employees were talking throughout the video. Further, the video was shown only in English, even though many employees were only able to understand and speak Spanish. Finally, the plaintiffs contend that even if Aramark’s policies and procedures were sufficient, there was a lack of good faith on the part of Aramark in following and implementing the established procedures. As a result, the plaintiffs assert Aramark cannot avoid liability for punitive damages through reliance on the good faith defense. The plaintiffs further argue Aramark is not entitled to a new trial or remittitur of any of the amounts awarded. With respect to the punitive damages, the plaintiffs assert the award was reasonable in light of the evidence. Additionally, in light of the reprehensible nature of Aramark’s conduct and the fact the award was within the statutory cap for damages in a Title VII case, the plaintiffs argue the award does not violate due process. With respect to the compensatory damages, the plaintiffs simply reassert their arguments outlined above, namely, that sufficient evidence was proffered to support the awards. Finally, with respect to the defendant’s motion for a new trial, the plaintiffs contend that after a review of all the evidence, a new trial is not appropriate. The plaintiffs point out that Villalpando was cross-examined at length regarding the inconsistency between her trial testimony and her deposition testimony and she did not recant her trial testimony and explained the reasons for her differing responses. Thus, this fact alone, argue the plaintiffs, should not cause the court to be left with a definite and firm conviction that the jury erred. 3. The defendant’s reply The defendant limits its reply solely to the discussion of the award of punitive damages to the plaintiffs. The defendant reiterates its arguments that the plaintiffs cannot prove Tomoson served in a managerial capacity and that, therefore, punitive damages cannot be imputed to Ara-mark as a result. The defendant contends that although Tomoson was a supervisor, it does not necessarily follow that he served within a managerial capacity or had enough authority to impute liability to Ara-mark. The defendant relies heavily on an Eleventh Circuit case, Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317 (11th Cir.1999), a pre-Kolstad case, for the proposition that punitive damages cases must be placed in context based on the size of the company and the responsibilities of the employee involved. Thus, in a corporation of Aramark’s size, the defendant contends Tomoson cannot be said to have served in a managerial capacity because he was not high enough in Aramark’s corporate hierarchy. Second, the defendant reasserts its arguments that the plaintiffs failed to establish Aramark acted with malice and/or reckless indifference. The defendant asserts the first complaint it received about Tomoson’s conduct was after Lopez had been terminated and she filed a complaint with the grievance. To bolster its argument, the defendant emphasized the fact that Tomoson had never before been the subject of a sexual harassment complaint. Thus, the defendant contends there was nothing inappropriate about Aramark’s conduct. Further, the defendant appears to assert that Tomoson’s conduct did not rise to the requisite level of malice or reckless indifference. Finally, in the event the punitive damages are not set aside as a matter of law, the defendant argues a new trial should be ordered by the court to avoid a miscarriage of justice. The defendant reasserts its contentions that plaintiffs’ counsel allowed Villalpando to testify she complained about the harassment during her employment at Aramark, despite her response on her ICRC questionnaire that she did not complain to anyone. The defendant contends in determining whether to order a new trial to avoid a miscarriage of justice, the trial court can rely on its own reading of the evidence. Taking into account all of the information, the defendant asserts the only reasonable conclusion that can be arrived at is that Villalpando testified falsely. Accordingly, the defendant urges the court to grant a new trial on both the issue of liability and damages and with respect to both plaintiffs based on the interrelationship between their claims. B. Motion For Judgment As A Matter Of Law 1. Standards for judgment as a matter of law Rule 50(a) of the Federal Rules of Civil Procedure provides for entry of judgment as a matter of law during trial if “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Fed.R.Civ.P. 50(a). Rule 50(b) provides for renewal of such a motion after trial, as follows: If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: (1) if a verdict was returned: (A) allow the judgment to stand, (B) order a new trial, or (C) direct entry of judgment as a matter of law; or (2) if no verdict was returned; (A) order a new trial, or (B) direct entry of judgment as a matter of law. Fed.R.Civ.P. 50(b). Aramark made motions for judgment as a matter of law in the course of trial, then filed its renewed motion for judgment as a matter of law on November 21, 2005 (Doc. No. 68). Therefore, Aramark’s motion for judgment as a matter of law is controlled by Rule 50(b). Moreover, because a verdict was returned on each of the issues on which Aramark has moved for judgment as a matter of law, the options before the court are those stated in Rule 50(b)(1). The Eighth Circuit Court of Appeals recently stated the following standards for a Rule 50(b) post-verdict motion for judgment as a matter of law: We review de novo the district court’s denial of [a] post-verdict motion for judgment as a matter of law. Racicky v. Farmland Indus., Inc., 328 F.3d 389, 393 (8th Cir.2003). We are required to decide whether or not the record contains evidence sufficient to support the jury’s verdict. Id. In doing so, “we must examine the sufficiency of the evidence in the light most favorable to [the prevailing party] and view all inferences in [its] favor.” Id. (citation omitted). “Judgment as a matter of law is appropriate only when all of the evidence points one way and is susceptible of no reasonable inference sustaining [the prevailing party’s] position.” Id. (citation omitted). Children’s Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 863 (8th Cir.2004); see Top of Iowa Co-op. v. Schewe, 324 F.3d 627, 633 (8th Cir.2003) (“ ‘Post-verdict judgment as a matter of law is appropriate only where the evidence is entirely insufficient to support the verdict.’ ”) (quoting Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir.2000)); Foster v. Time Warner Entm’t Co., 250 F.3d 1189, 1194 (8th Cir.2001) (“Judgment as a matter of law is proper only when there is a complete absence of probative facts to support the conclusion reached so that no reasonable juror could have found for the nonmoving party.”) (internal quotation marks and citations omitted); Children’s Broad. Corp. v. Walt Disney Co., 245 F.3d 1008, 1015 (8th Cir.2001) (“Judgment as a matter of law [post-trial] is warranted only when all the evidence points in one direction and no reasonable interpretations support the jury’s verdict.”); Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 931-32 (8th Cir.2000) (articulating similar standards, noting that “ ‘[t]his demanding standard reflects our concern that, if misused, judgment as a matter of law can invade the jury’s rightful province’ ” and that “[a] jury’s verdict should not be lightly set aside, but in this case our duty is to do so”) (quoting Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir.1996)); Belk, 228 F.3d at 877-78 (articulating similar standards and notirtg, inter alia, that “[p]ost-verdict judgment as a matter of law is appropriate only where the evidence is entirely insufficient to support the verdict”). Thus, this standard requires the court to: “[C]onsider the evidence in the light most favorable to the prevailing party, assume that, the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party’s evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence.” Minneapolis Cmty. Dev. Agency, 928 F.2d at 301 (quoting Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 989 (8th Cir.1989)); see also Stephens v. Johnson, 83 F.3d 198, 200 (8th Cir.1996) (citing Whitnack v. Douglas County, 16 F.3d 954, 956 (8th Cir.1994), in turn, quoting Hastings v. Boston Mut. Life Ins. Co., 975 F.2d 506, 509 (8th Cir.1992)); Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir.1996); Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 800 (8th Cir.1994) (reiterating these factors) (citing White v. Pence, 961 F.2d 776, 779 (8th Cir.1992)); McAnally v. Gildersleeve, 16 F.3d 1493, 1500 (8th Cir.1994) (same). This standard for consideration of a motion for judgment as a matter of law accords the jury’s verdict substantial deference. Tilson v. Forrest City Police Dep’t, 28 F.3d 802, 806 (8th Cir.1994); McAnally, 16 F.3d at 1500. However, despite the amount of deference accorded to the jury’s verdict, the jury cannot be accorded “the benefit of unreasonable inferences, or those ‘at war with the undisputed facts,’ ” McAnally, 16 F.3d at 1500 (quoting City of Omaha Employees Betterment Ass’n v. City of Omaha, 883 F.2d 650, 651 (8th Cir.1989), in turn, quoting Marcoux v. Van Wyk, 572 F.2d 651, 653 (8th Cir.1978)), but the court must still defer to the jury’s resolution of conflicting testimony. Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Schewe, 149 F.Supp.2d at 716. Thus, the Eighth Circuit Court of Appeals has also explained that “ ‘[a] mere scintilla of evidence is inadequate to support a verdict,’ and judgment as a matter of law is proper when the record contains no proof beyond speculation to support the verdict.” Clark v. Kan. City Missouri Sch. Dist., 375 F.3d 698, 701 (8th Cir.2004) (quoting Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir.1996) (en banc)). With these concepts in mind, the court turns to each of the four grounds in which the defendant contends it is entitled to judgment as a matter of law: (1) the plaintiffs’ harassment and retaliation claims; (2) the plaintiffs’ claims for emotional distress damages; (3) Villalpando’s claim for backpay damages; and (4) the plaintiffs’ claims for punitive damages. 2. Federal and Iowa law claims Before addressing the merits of the parties’ respective arguments, it is important to note that the plaintiffs premised their claims of retaliation and hostile work environment sexual harassment under both federal law pursuant to Title VII and state law, pursuant to the Iowa Civil Rights Act (“ICRA”). This court has previously noted that “[i]t is widely accepted in the Eighth Circuit that generally no distinction is made between claims based on federal law and comparable state law claims under the ICRA.” Soto v. John Morrell & Co., 285 F.Supp.2d 1146, 1177-78 (N.D.Iowa 2003) (citing Hannoon v. Fawn Eng’g Corp., 324 F.3d 1041, 1046 (8th Cir.2003); Beard v. Flying J, Inc., 266 F.3d 792, 798 (8th Cir.2001)). This is so, because the Iowa Supreme Court has recognized that federal precedent is applicable to discrimination claims under the ICRA. See id. at 1178 (citing Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999), which states, “The ICRA was modeled after Title VII of the United States Civil Rights Act. Iowa courts therefore turn to federal law for guidance in evaluating the ICRA.”). However, federal law is not controlling, but merely provides an analytical framework for analyzing ICRA claims. Id. (citing Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa 1989)). With these principles in mind, unless a distinction between Title VII and the ICRA becomes critical, the court will analyze the plaintiffs’ state and federal retaliation and hostile environment claims together using federal precedent. 3. The retaliation claims The Eighth Circuit Court of Appeals recently reiterated that, post-Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), the courts must still apply the McDonnell Douglas three-part burden-shifting analysis to retaliation claims. Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1017-18 (8th Cir.2005) (holding that Desert Palace had no impact on the applicability of the burden-shifting analysis to either retaliation or discrimination claims); see also Eliserio v. United Steelworkers of Am. Local 310, 398 F.3d 1071, 1078 (8th Cir.2005) (applying the burden-shifting analysis to a retaliation claim); Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1048 (8th Cir.2005) (same). Thus, “[t]o make a prima facie case of retaliation against an employer, a claimant must show that (1) he engaged in protected conduct by either opposing an act of discrimination made unlawful by Title VII or participating in an investigation under Title VII; (2) he suffered an adverse employment action; and (3) the adverse action was causally linked to the protected conduct.” Eliserio, 398 F.3d at 1078-79; Kratzer, 398 F.3d at 1048; accord Henderson v. Ford Motor Co., 403 F.3d 1026, 1035 (8th Cir.2005) (“To state a retaliation claim, a plaintiff must show that she (1) engaged in a protected activity, (2) that she suffered an adverse employment action, and (3) that the two events are causally connected.”). If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to offer a non-retaliatory reason for alleged retaliation, and if the employer does so, the plaintiff must show that the proffered reason is a pretext for retaliation. Eliserio, 398 F.3d at 1078-79; Kratzer, 398 F.3d at 1048 (“Once the prima facie case is made, [the employer] must articulate a legitimate, nondiscriminatory reason for its actions,” and if the employer does so, then “[t]he burden shifts to [the employee] to establish that the alleged legitimate, nondiscriminatory reason for [adverse action] was a pretext.”). As to pretext, the question is whether a reasonable jury could find the defendant’s explanation to be a mere pretex