## - United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2135

_____________ Mary K. Howard, * * Plaintiff - Appellee, * * v. * Appeal from the United States * District Court for the Burns Bros., Inc., an Oregon * District of Nebraska. Corporation, doing business as Mrs. B's * and Burns Brothers Truck Stop, * * Defendant - Appellant. *

_____________ Submitted: December 12, 1997 Filed: July 14, 1998

_____________ Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.

_____________ JOHN R. GIBSON, Circuit Judge. Burns Brothers, In c. appeals from the district court's entry of judgment against it after a jury verdict in favor of Mary Howard on her Title VII claims. Howard sued Burns Brot

hers for hostile environment sexual harassment and constructive discharge she allegedly suffered when she worked as assistant m anager at a Burns Brothers truck stop in Overton, Nebraska. The jury returned a verdict for Howard of $25,000 actual and $75,000 punitive

damages on the constructive discharge claim, and $1,000 actual and $2,000 punitive damages on the hostile environment claim. The district court-2-

de niedBurns Brothers' motions for new trial, remittitur, and judgment as a matter o f law on liability and on damages. Burns Brothers contends on appeal that the district court erred in denying its motio ns and in instructing the jury. We affirm on the hostile environmentactual and punitive damages claims, and we reverse the denial of th e motion for judgment as a matter of law as to the constructive discharge claim.

The facts stated in Burns Brothers' and Howard's briefs, respectively, are s o different that they seem to describe entirely different trials and different chains o f
occurrences. Similarly, the testimony about the events at the truck stop varies wildly
ac cording to whether the plaintiff's or defendant's witnesses are testifying. We, o f course, do not resolve these disco rdant accounts, but instead must view all the facts in the light most favorable to the party that pr evailed before the jury, giving that party the ben efit of all reasonable inferences that can be drawn from the evidence, see Tidwell v. Meyer's Bakeries, Inc. , 93 F.3d 490, 494 (8th Cir. 1996), and resol ving all credibility questions in that party's favor.

InJuly 1990 Mary Howard started working as a cashier at the Burns Brothers tru ck stop, which consisted of a restaurant and a fuel station. John Wood was th e general manager of the whole operation, and his wife, Stephanie Wood, was th e restaurant manager. After about a year and a half, Howard was promoted to assistant manager of the fuel station. Burns Brothers had posted at the truck stop a corporat e polic y prohibiting sexual harassment. The notice included the phone number of a con tact person at the corporate headquarters in Portland, Oregon, for complaints that were not handled satisfactorily at the local level.

Howard's sexual harassment c omplaints stem from the conduct of Keith Daake, a co-employee. She testified that from the t ime she started working at Burns Brothers, Daake was "always saying sexual innuendos." She testified that Daake once told her she had nice legs and that he was "going to get [her]." She said that she reported thisBurns Brothers protests that these inci dents concern a time outside the 300-day 1 window of 42 U.S.C. § 2000e-5(e)(1)(1994). In hostile environment cases, harassing acts committed outside the 300-day period are nevertheless relevant as background in assessing the sexual content of acts that occurred during the relevant time period or in the c ase of a continuing violation. Kimzey v. Wal-Mart Stores, Inc. , 107 F.3d 568 , 572-73 (8th Cir. 1997). -3- comment to John Wood, who said, "That's just Keith," and did nothing more. Howard 1 said that Daake would often brush against her intentionally while the two of them were working i n the narrow area behind the fuel counter. Once Daake brushed Howard' s buttocks, and she kicked him. Howard and the assistant manager for t he restaurant, Pat Kiger, complained to John Wood several times about Daake brushing against them.

Howa rd also testified that Daake said and did inappropriate things to othe r female e mployees. We have considered harassment of employees other than th e plaintiff to be relevant to show pervasiveness of the hostile environment. See Hall v. Gu s Const. Co. , 842 F.2d 1010, 1015 (8th Cir. 1988). Cathy Piska complained t o Ma ry Howard and to John Wood that Daake would "touch [her] butt or put his ar m around [h er]" or "talk nasty." Linda Wolf complained to Howard that Daake wa s making s exual innuendos. Howard reported this complaint to John Wood

. Additional ly, Howard said that Burns Brothers' regional manager, Jack Fairfield, saw Daake "[rub] up next to" Wolf. Howard said Fairfield commented to her, "[T]hat's not very good . . . John needs to do something about that."

In addition to the i ncidents recited above, there was also evidence of two jokes Daake told in which the punch line involved lewd gestures, in one instance, touching a woman's b reast, and in the other, thrusting his hips into a woman from behind. The women who testified a

bout the jokes said that one or both of the Woods were present for the jokes.-4-

Howard also cites testimony of Pat Kiger and Barb Martin about Daake' s co nduct toward Barb Martin, a cook at the restaurant. The two witnesses said tha t Daak e had called Martin a "fucking bitch" and had written a note on his meal order , "Don't ki ll it," apparently meaning not to burn his meal. Kiger reported Daake' s behavior to the Woods. John Wood testified that he reprimanded Daake about th e incidents.
On Sunday , January 9, 1994, a young waitress, Cameo Svavari, complained to Howard and Kiger about Daake's conduct. Howard and Kiger asked her to write up a list of what Da ake had said and done. Svavari jotted down a list of seven examples of suggestive things Daake had said or done. The Woods were off-duty at the time, so Howard and Kiger drove over to their house to deliver the list. They told John Wood that "if something wasn't -- wasn't done about this that we were going to go to Portland [Burns Brothers' corporate headquarters], we were going to go higher, that this wa s ridiculous." John Wood told Kiger and Howard to go back to the truck stop and get out the corporate policy on sexual harassment and that he would come down to th e truck stop. About an hour later, Wood came to the truck stop, called Daake into the office, an d gave him a "final warning." The warning was reduced to writing an d signed by Wood and Daake. The document cited Daake for "Making unwanted sexual remarks t o other company members. Also being too familiar and touching femal e company members." It said that the next disciplinary action against Daake would be "up to and including suspension and/or discharge."

Howard testified that John Wood's treatment of her changed from that day on. Af ter the Svavari complaint, "John [Wood] wouldn't talk to me. If I-- he had me o r wanted me to do something, he'd write i t down on a piece of paper." She testified that she got "di rty looks" from the people on the day shift, including John and Stephani e Wood. Howard said John Wood:-5-

wouldn't talk to me, wouldn't even give me the time of day . He would say nothing. He'd walk the other way so as to not walk by me. If he did have to walk by me, he'd look me up and down like I was a nothing and a nobody. Him and Stevie [Stephanie Wood] and Keith and Susie [Daake's wife] would sit in a booth after they got off th eir shift right beside the fuel desk and laugh like you knew they were laughing about you. . . .
She said that she recei ved poor treatment from "anybody basically that worked on the day shift." Several witnesses corroborated Howard's testimony that John Wood was cool towar d her. One witness said that after the Svavari complaint "things seeme d tense" an d "[i]t just didn't seem like John had any respect for Mary's position." Pa t Kiger said that after the complaint John Wood treated Howard "very, very, very cold, very badly, " and that he left her "rude, nasty note[s] . . . such things as do this and do tha t." Another witness said that she observed that John Wood wouldn't speak t o Howard.

Howard and her husband testified that Howard was upset by John Wood' s treatment of her, and that she frequently cried about her working conditions.
After John Wood gave Daake his "final warning," Howard testified that she had no further trouble with Daake touching her. She agreed that "Daake prettymuch stayed away from [her] . . . after that." There was, however, a verbal excha nge that took place after the warning that Howard considered further sexual harassment.

The incident occurred in the midst of a struggle over the truck stop's thermostat setting. Howard wanted the thermostat turned up high because she was cold in th e office, where she worked. Other employees complained that the thermo stat was set too high and th ey had adjusted the setting. Howard testified that she put a lock on th e thermostat to keep other employees from lowering the setting, and she told the otherHoward's diary also states that on January 23, 1994, Daake called Pat Kiger a 2 "bitch" during a dispute about the coffee maker. -6- employees to "leave the heat a lone." She said Keith Daake replied, "[Y]ou don't need heat, I can warm you up." 2

Howard never complained about Daake to Burns Brothers' corporate office , though she was aware of Burns Brothers' anti-harassment policy.

Howard turned in her resignation at Burns Brothers on February 8, 1994. Her last day on the job was February 15, and she started a new job the next day.

Howard sued Burns Brothers under Title VII, for maintaining a sexually hostile environment, 42 U.S.C. § 2000e-2(a) ( 1994), and for constructively discharging her in retaliation for

her role in the Cameo Svavari complaint. 42 U.S.C. § 2000e-3 (1994). The jury fou nd for Howard. On the constructive discharge claim, the jury awarde d Howard $4,400 in economic damages, $25,000 in compensatory damages, a nd $75,000 in puniti ve damages. The jury awarded Howard $1,000 compensatory and $2,00 0 punitive damages on the sexually hostile work environment claim.
Burns Brothers moved for judgme nt as a matter of law, new trial, and reduction or elimination of compensatory and punitiv e damages. The district court denied Burns Brothers' motions.

I.

Burns Brothers contends that the district court erred in denying it judgment as a matter of law. We review de novo the district court's denial of judgment as a matter of law, examining whether there is sufficient evidence to support the jury's verdict

. Tidwell , 93 F.3d at 494. We view the evidence in the light most favorable to the jury's-7-

verdict, giving the party who prevailed before the jury the benefit of all reasonabl e infe rences. Id. Judgment as a matter of law is appropriate only when there is a complete absence of probative facts supporting the jury's verdict, so that no reasonable juror could have found for the nonmoving party. Hathawa y v. Runyon , 132 F.3d 1214, 1220 (8th Cir. 1997).

II. To prove that she was subjected to a hostile work environment in violation of Title VII, Howard had to show that:
(1) she belongs to a protected group; (2) she was subject to unwelcome sexu al harassment; (3) the harassment was based on sex; (4) th e harassment affected a term, condition, or privilege of employme nt; and (5) [Burns Brothers] knew or should have known of the harassment an d failed to take proper remedial action.
Kopp v. Samaritan Health Sys., Inc. , 13 F.3d 264, 269 (8th Cir. 1993). Harassmen t affect s a term, condition, or privilege of employment if it is "sufficiently severe o r pervasive to alter the conditions of the victim's employment and create an abusiv e w o rking environment." Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank v. Vinson , 477 U.S. 57, 67 (1986)). The conduct must be sufficient to create a hostile environment, both as it would be viewed objectively by a reasonable person and as it was actually viewed subjectively by the victim. Harris , 510 U.S. at 21- 22. Relevant factors for determining whether conduct rises to the level of abusiveness inc lude "the frequency of the discriminatory conduct; its severity; whether it i s physica lly threatening or humiliating, or a mere offensive utterance; and whether i t unreasonably interferes with an employee's work performance." Id. at 23.-8-

Burns Brothers contends that there was a failure of proof on two elements of the hostile environment claim: first, that the evidence does not show that Howard wa s subjected to conditions amounting to an abusive working environment, and second, that Bu rns Brothers took prompt remedial action when notified of the Cameo Svavar i complaint.

We are convi nced that there is evidence of offensive conduct in this case. Two aggr avating factors are present, unwanted physical contact when Daake allegedl y bru shed against Howard behind the fuel desk, and frequency of the conduct, sinc e Howard testified that Daake's sexual innuendos were chronic. There was also evidence that the conduct was upsetting to Howard; she testified that she thought Daake was "a sick man" and that she complained about his "ridiculous" conduct.

Once there is evidence of improper conduct and subjective offense, th e determination of w hether the conduct rose to the level of abuse is largely in the hands of the jury. See Hathaway , 132 F.3d at 1221.

Justice Scali a pointed out in his concurring opinion [in Harris ] that since Congress set no clear standard defining a hostile environment, it must be left to "virtu ally unguided juries" to decide whether particular conduct is "egregious enough" to merit an award of damages. There is no bright line betwe en sexual harassment and merely unpleasant conduct so a jury' s decision must generally stand unless there is trial error.

Id. (internal citations omitted ). We therefore conclude that Howard made a sufficient showing of abusive conduct to support the jury's verdict in her favor.

As f or remediation, Burns Brothers relies on the evidence in the light mos t favora ble to it, that John Wood gave Daake a serious warning when he first becam e aware of improper conduct--at the time of the Svavari complaint. After that time,-9-

Howard admitted Daake did not br ush against her anymore, although she testified that he said he could "warm her up" in connection with the thermostat dispute. But Howard test ified that she had complained to John Wood about Daake long before the Svavari complaint, and that Wood did nothing. Howard therefore m ade a submissible case that Burns Brothers management knew of Daake's conduct, but failed to put a stop to i t promptly. Once the

plaintiff makes a submissible case, the promptness and adequacy of the employer's response to a complaint of harassment are fact questions for the jury to resolve. See Smith v. St. Louis Univ. , 109 F.3d 1261, 1265 (8th Cir. 1997). On this record we may not disturb the jury's verdict.

III. Howard alleged that she was construc tively discharged in retaliation for helping Cameo Sv avari file a written complaint about Keith Daake's conduct. Specifically , Howard contends that John Wood and the day shift employees "would not speak to her following the Cameo Svavari complaint," and that Howard's "authority [was ] und ermined

by John Wood, [so that] Howard could not effectively do her job, an d quit. " Burns Brothers argues that Howard failed to show she was constructivel y disc hargedor that Wood's treatment of Howard was retaliation for the Svavar i
c o mplaint. Burns Brothers contends that Howard's poor relationship with Wood and the other employees stemmed from Howard's improper conduct, such as stealing papers out of Wood's briefcase and publicly cursing another employee over the thermosta t setting.

To esta blish a case of Title VII retaliation, Howard had to show: (1) that sh e engaged i n a protected activity; (2) that she suffered an adverse employment action ; and (3) that adverse action occurred because of her protected activity. Coffman v

. Tracker Marine, L.P. , 141 F.3d 1241, 1245 (8th Cir. 1998); Cross v. Cleaver , 1998 WL 164414, No. 97-3441, slip op. at 22-23 (8th Cir. April 10, 1998).-10-

Howa rd's theory of the adverse employment action was that she wa s constructively discharged by Wood 's conduct towards her after the Svavari complaint. Sh e contends that Wood was cold to her and would not talk to her, and that it "wa s impossible for Howard to have done her job without the backing of her genera l manager, John Wood." She testified that after the Svava ri complaint, rather than speak to her, Wood left her notes about what needed to be done.

Burns Bro thers contends that Howard did not prove facts sufficient to permit a jury to find she was constructively discharged.

To c onstitute a constructive discharge, the employer mus t delibe rately create intolerable working conditions with the intention o f forcing the employee to quit and the employee must quit. The plaintif f can sati sfy the intent requirement by demonstrating that he quit as a reas onably foreseeable consequence of the employer's discriminator y actions.
Aconstructive discharge arises only when a reasonable perso n would find the conditions of employment intolerable.

Tidwell , 93 F.3d at 494 (citations omitted).
Our recent cases have struggled with the questio n of what type of conditions are "intol erable" for constructive discharge purposes. "A plaintiff must show more tha n just a Title VII violation by her employer in order to prove that she has bee n constructiv ely discharged." Coffman , 141 F.3d at 1247 (citing Tidwell , 93 F.3d a t 495). I n Tidwell , an employee who worked in an environment that was "tinged with discrimina tory acts" was nevertheless not constructively discharged, because the acts were not so severe that a reasonab le person would have found them intolerable. Id. at 497

. Similarly, in Hanenburg v. Principal Mutual Life Insurance Co. , 118 F.3d 57 0 (8th Cir. 1997), we affirmed summary judgment for the employer in a disparate-11-

trea tment case, holding that the employee did not make a prima facie case o f constructive discharge, though she produced evid ence that "her supervisors scrutinized her behavior in the workplace more closely than it [sic] did other employees." Id. at 575. We s tated that this discriminatory conduct could not, as a matter of law, suffice to establish constructive discha rge: "While all this no doubt made work less enjoyable for Hanenburg and might have induced stress for her, there is simply not enoug h evidence to support a finding that her supervisors' conduct created the compulsion to quit that is necessary for a constructive discharge." Id. at 575.

In recent cases in which we have affirmed constructive discharge verdicts, we hav e emphasized the employee's lack of recourse within the employer's organization. We upheld a constructive discharge verdict in Delph v. Dr. Pepper Bottling Co. , 130 F.3d349, 356-57 (8th Cir. 1997), based on a hostile environment. We held that the hostile environme nt was bad enough to constitute constructive discharge, because the ha rassment--racial slurs--came from the plaintiff's supervisor and the offendin g language was not only used in the plaintiff's presence, but was directed at him. Id. at 356. In K imzey v. Wal-Mart Stores, Inc. , 107 F.3d 568, 574 (8th Cir. 1997), w e emphasized management's indifference to the employee's complaints of hostil e environme nt

in affirming the plaintiff's verdict on constructive discharge: "If a n employ ee quits because she reasonably believes there is no chance for fair treatment, there has been a constructive discharge." Id. at 574. In contrast, we reversed th e constructive discharge judgment in Coffman , in part because the employee had a n av enue of redress within the company and failed to use it. 141 F.3d at 1247-48

. Accord Knowles v. Ci ticorp Mortgage, Inc. , 1998 WL 191163, No. 97-3302, slip op. at 8 (8th Cir. April 23, 1998) (affirming summary judgment for employer o n constructive discharge claim because employee did not pursue internal grievanc e procedure ). Cf. Faragher v. Boca Raton , No. 97-282, 1998 WL 336322 at *19 (U.S. June 26 , 1998) (recognizing affirmative defense to supervisor harassment; employe r must show that it had sufficient anti-harassment policy and that plaintiff unreasonably-12-

failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise).

Inthis case, the alleged retaliatory conduct came from Howard's supervisor, a factor w hich pointed to constructive discharge in Delph . On the other hand, Burn s Brothers had posted a corporate po licy against sexual harassment at the Overton truck stop. The policy included a phone number of a contact person at the corporat e headquarters in Portland, Oregon, for any complaints that were not resolve d satisfactorily at the local level. Ho ward was clearly aware of this policy since she and Pat Kiger threatened John Wood that they would take the Svavari complaint to Portland if he did not act on it. Despite this knowledge, Howard failed to pursue the remedy Burns Br others provided. "If an employee quits without giving her employer a reason able chance to work out a problem, then she has not been constructivel y discharged." Coffman , slip op. at 10. We conclude that Howard did not prove facts sufficient as a matter of law to constitute constructive discharge.

We the refore hold that considering the evidence in the light most favorable t o Howard, and giving her the benefit of all reasonable inferences , Howard failed to prove that she was constructively discharged. Since constructive discharge was her theory of the "adverse employment action," she has faile d to prove an essential element of her retaliation claim. It is therefore not necessary for us to consider whether she proved that the rea son for the "adverse employment action" was retaliation for her role in the Sv avari complaint, or whether, as Burns Brothers contends, there were other reasons for her poor relationships with co-workers.

IV.

Burns Brothers argues that there was insufficient evidence to support the jury's award of compensatory and punitive damages.-13- A.
The jury awarded compe nsatory damages of $1,000 on the hostile environment claim and $25,000, plus lost wages and benefits of $4,400, on the constructiv e discharge c laim. Since we reverse on the constructive discharge claim, we need only consider the $1,000 award on the hostile environment claim.

Un der the Civil Rights Act of 1991, victims of intentional discriminatio n prohibite d by Title VII may recover compensatory damages for "future pecuniary losses, emotional pain, s uffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpec uniary losses." 42 U.S.C. § 1981a (b)(3); Landgraf v. USI Film Prods

. , 511 U.S. 244, 253 (1994). Howard and her husband both testified that sh e suffered mental anguish as a result of her experiences at Burns Brothers.

Burns Brothers argues that Howard did not present "competent" evidence o f emotional injury. Howard and her husband's testimony were competent evidence on the subject of her emotional distress. See Kim v. Nash Finch Co. , 12 3 F.3d 1046, 1065 (8th Cir. 1997).

Burns Brot hers also argues that the award was excessive. The evidence wa s sufficient to support the $1,000 award for maintaining a hostile environment.-14- B.

The j ury awarded Howard punitive damages of $2,000 on the hostil e en vironment claim and $75,000 on the constructive discharge claim. Again, because of our disposition of the constructive discharge claim, we need consider only th e $2,00 0 award on the hostile environment claim. A Title VII plaintiff may recove r punitive damages under 42 U.S.C. § 1981a (b)(1) if he d emonstrates that the defendant eng aged in discriminatory practices "with malice or with reckless indifference to th e federally protected rights of an aggrieved individual." Section 1981a requires a showi ng of more than intentional discrimination to support an award of punitiv e damages. Browning v. P

resident Riverboat Casino-Missouri, Inc. , 139 F.3d 631, 637 (8th Cir. 1998). Even a

finding of retaliation does not necessarily justify an award of punitive damages. See Karcher v. Emerson Elec. Co. , 94 F.3d 502, 509 (8th Cir

. 1996), c ert. denied , 117 S. Ct. 1692 (1997). See also Varner v. National Supe r Mark ets, Inc. , 94 F.3d 1209, 1214 (8th Cir. 1996) (insufficient case for punitiv e damages where seventeen-year-old girl t wice sexually assaulted by co-worker; second assault occurred after complaint to management, which took no action), cert. denied , 117 S. Ct. 467 (1997).
In this case, Daake 's inappropriate conduct continued over years, with frequent and re gular notice to John Wood. Howard testified that Daake's pattern of sexua l innuend o and intentional touching was chronic and began as soon as she starte d working at Burns Brothers in 1990. She said that when sh e complained to John Wood, he said, "That's just Keith." How ard said she complained to Wood about the touching "several times" from November 1991 until February 1994.

Howard and Pat Kiger also complained to John Wood over the years abou t Daake's harassment of other employees, such as Linda Wolf and Cameo S vavari. Cathy Piska also testified that she complained directly to John Wood. Pat Kiger said sheIn Green v. American Airlines, Inc. , 804 F.2d 453, 455-56 (8th Cir. 1986), we 3 discussed the unresolved constitutional question of whether an appellate court can order a new trial on the ground that the verdict is against the weight of the evi dence. Because Burns Brothe rs made no showing of miscarriage of justice, we need not reach th e -15- mentioned

the Daake harassment problem at almost every manager's meeting, which occurred monthly.
Additionally, one or both of the Woods were present for each of the two lewd jokes that involved Daake touching a female employee's breast or buttocks.
Howard also testified that the regi onal manager, Jack Fairfield, was present and observed Daake harassing Linda Wolf. Fairfield said, " [T]hat's not very good . . . John needs to do something about that." Fairfield, Kiger and Howard "[t]alked at grea t length" about the Daake problem.
Manage ment's practice of turning a blind eye to repeated complaints o f misconduct was sufficient todemonstrate "reckless indifference" in Kimzey , 107 F.3d at 576 . Here, Burns Brothers' manager ignored frequent complaints over at least two to three years, as well as lewd jokes involving offens ive touching in his presence. This evidence was sufficient to support submission of punitive damages to the jury under the federa l"reckless indifference" standard, as well as to support the $2,000 amoun t awarded.

V.

Burns Bro thers argues that the district court erred in denying its motion for a new trial on the ground that the verdict was against the weight of the evidence. Th e district court's d enial of such a motion is "virtually unassailable on appeal," Keeper v. King , 130 F.3d 1309, 1314 (8th Cir. 1997) (quotation omitted). The movant must 3constitutional question here. -16-

sh ow that a new trial was necessary to avoid a miscarriage of justice. Id. Burn s Brothers has made no such showing.

Bur ns Brothers also contends that the district court erred in submitting a n instruct ionthat the jury could consider evidence outside the relevant time period i n ev aluating the events that occurred during the relevant time. Burns Brothers als o contends the court erred in denying its request for another instruction. We detect no abuse of discretion in the district court's instruction rulings. See Karcher , 94 F.3d at 510 (instruction rulings reviewed for abuse of discretion); Kimzey , 107 F.3d at 572-73 (evidence of harassment outside relevant period admissible in evaluating actions within relevant period).

. . . We therefore affirm the judgment in favor of Howard on her hostile environment claim and the award of compensatory and punitive damages on that claim. We reverse the judgment on the constructive discharge claim.
A true copy.

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