United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2259

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Tammy L. Miller; Russell W. Miller, *

Individually, and as Guardians for, *

Dustan Gauley, Katie Gauley, Tabitha *

Miller, Nicholas Miller and Brittany *

Miller, *

*

Plaintiffs-Appellees, *

* Appeal from the United States

v. * District Court for the Northern

* District of Iowa.

Woodharbor Molding & Millworks, *

Inc.; * [PUBLISHED]

*

Defendant-Appellant, *

*

Todd Piper; Curtis Lewerke; Jon *

Lewerke, *

*

Defendants. *

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 Submitted: April 21, 1999

Filed: April 28, 1999

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*The Honorable Pasco M. Bowman stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the end of the day on April 23, 1999.

He has been succeeded by the Honorable Roger L. Wollman.

**The Honorable Andrew W. Bogue, United States District Judge for the District

of South Dakota, sitting by designation.

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Before BOWMAN,* Chief Judge, FAGG, Circuit Judge, and BOGUE,** District Judge.

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PER CURIAM.

Woodharbor Molding & Millworks, Inc. (Woodharbor) appeals the district

court’s decision that Tammy L. Miller was subjected to a hostile work environment in

violation of Title VII while employed at Woodharbor. Relying on our existing case

law, the district court found that Miller belonged to a protected class, Miller was

subjected to unwelcome sexual harassment at the hands of her supervisor, the

harassment was based on sex, the harassment affected a term, condition, or privilege

of Miller’s employment, and Woodharbor knew or should have know of the harassment

and failed to take prompt remedial action. See Burns v. McGregor Elec. Indus., Inc.,

955 F.2d 559, 564 (8th Cir. 1992). These factors, however, are no longer controlling

on the issue of Woodharbor’s liability. After the bench trial in this case, the United

States Supreme Court decided Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257

(1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). In Ellerth and

Faragher, the Supreme Court held that an employer will be vicariously liable for a

supervisor’s sexual harassment of an employee when the employee suffers a tangible

employment action such as demotion, undesirable reassignment, or discharge. See

Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2293. Absent a tangible

employment action, the Supreme Court held an employer will still be vicariously liable

for a supervisor’s sexually harassing behavior unless the employer can prove by a

preponderance of the evidence a two-part affirmative defense. See Ellerth, 118 S. Ct.

at 2270; Faragher, 118 S. Ct. at 2293; see also Newton v. Cadwell Labs., 156 F.3d
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880, 883-84 (8th Cir. 1998); Phillips v. Taco Bell Corp., 156 F.3d 884, 889-90 (8th

Cir. 1998). 

Here, because the parties concede Miller did not suffer a tangible employment

action, Woodharbor is entitled to present an affirmative defense. Thus, we reverse the

district court’s judgment and remand to give Woodharbor the opportunity to show both

that it exercised reasonable care to prevent and correct promptly any sexually harassing

behavior and that Miller unreasonably failed to take advantage of any preventive or

corrective opportunities provided by Woodharbor or otherwise to avoid harm.

See Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2293; Phillips, 156 F.3d at 889.

Woodharbor also appeals the district court’s award of attorney’s fees to Miller,

contending Miller’s claimed fees were inadequately documented. We agree. As the

district court stated, Miller “failed to consistently identify the subject matter of the

work performed” and repeatedly failed “to specify the substance or content of” billed

tasks. The district court noted Miller’s generalized billing hindered “the court’s ability

to conduct a meaningful review of both the fee application and of [Woodharbor’s]

attendant complaints.” If the district court concludes on remand that Miller is still

entitled to recover on her hostile work environment claim, the district court should

request a more detailed billing before awarding attorney’s fees or should consider a

percentage reduction for inadequate documentation. See Hensley v. Eckerhart, 461

U.S. 424, 436-37, 437 n.12 (1983); H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th

Cir. 1991). 

In sum, we reverse the district court’s judgment and remand to give Woodharbor

the opportunity to present an affirmative defense to Miller’s hostile work environment

claim. We also reverse the district court’s award of attorney’s fees to Miller and

remand for reconsideration in the event Miller prevails on her claim.
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A true copy.

Attest:

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