- 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, Inc. 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 Brothers for hostile environment sexual harassment and constructive discharge

she allegedly suffered when she worked as assistant manager 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
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denied Burns Brothers' motions for new trial, remittitur, and judgment as a matter of

law on liability and on damages. Burns Brothers contends on appeal that the district

court erred in denying its motions and in instructing the jury. We affirm on the hostile

environment actual and punitive damages claims, and we reverse the denial of the

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 so

different that they seem to describe entirely different trials and different chains of

occurrences. Similarly, the testimony about the events at the truck stop varies wildly

according to whether the plaintiff's or defendant's witnesses are testifying. We, of

course, do not resolve these discordant accounts, but instead must view all the facts in

the light most favorable to the party that prevailed before the jury, giving that party the

benefit 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 resolving all credibility

questions in that party's favor. 

In July 1990 Mary Howard started working as a cashier at the Burns Brothers

truck stop, which consisted of a restaurant and a fuel station. John Wood was the

general manager of the whole operation, and his wife, Stephanie Wood, was the

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 corporate

policy prohibiting sexual harassment. The notice included the phone number of a

contact person at the corporate headquarters in Portland, Oregon, for complaints that

were not handled satisfactorily at the local level.

Howard's sexual harassment complaints stem from the conduct of Keith Daake,

a co-employee. She testified that from the time 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 this
Burns Brothers protests that these incidents 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 case of a continuing violation. Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568,

572-73 (8th Cir. 1997).

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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 in the narrow area behind the fuel counter. Once Daake brushed Howard's

buttocks, and she kicked him. Howard and the assistant manager for the restaurant, Pat

Kiger, complained to John Wood several times about Daake brushing against them. 

Howard also testified that Daake said and did inappropriate things to other

female employees. We have considered harassment of employees other than the

plaintiff to be relevant to show pervasiveness of the hostile environment. See Hall v.

Gus Const. Co., 842 F.2d 1010, 1015 (8th Cir. 1988). Cathy Piska complained to

Mary Howard and to John Wood that Daake would "touch [her] butt or put his arm

around [her]" or "talk nasty." Linda Wolf complained to Howard that Daake was

making sexual innuendos. Howard reported this complaint to John Wood.

Additionally, 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 incidents 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 breast, and in the other, thrusting his hips into a woman from behind. The

women who testified about the jokes said that one or both of the Woods were present

for the jokes.
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Howard also cites testimony of Pat Kiger and Barb Martin about Daake's

conduct toward Barb Martin, a cook at the restaurant. The two witnesses said that

Daake had called Martin a "fucking bitch" and had written a note on his meal order,

"Don't kill it," apparently meaning not to burn his meal. Kiger reported Daake's

behavior to the Woods. John Wood testified that he reprimanded Daake about the

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 Daake 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 was

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 the

truck stop. About an hour later, Wood came to the truck stop, called Daake into the

office, and gave him a "final warning." The warning was reduced to writing and

signed by Wood and Daake. The document cited Daake for "Making unwanted sexual

remarks to other company members. Also being too familiar and touching female

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.

After the Svavari complaint, "John [Wood] wouldn't talk to me. If I-- he had me or

wanted me to do something, he'd write it down on a piece of paper." She testified that

she got "dirty looks" from the people on the day shift, including John and Stephanie

Wood. Howard said John Wood:
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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 their shift right beside the fuel

desk and laugh like you knew they were laughing about you. . . .

She said that she received poor treatment from "anybody basically that worked on the

day shift." Several witnesses corroborated Howard's testimony that John Wood was

cool toward her. One witness said that after the Svavari complaint "things seemed

tense" and "[i]t just didn't seem like John had any respect for Mary's position." Pat

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

that." Another witness said that she observed that John Wood wouldn't speak to

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 pretty much stayed

away from [her] . . . after that." There was, however, a verbal exchange 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 the

office, where she worked. Other employees complained that the thermostat was set too

high and they had adjusted the setting. Howard testified that she put a lock on the

thermostat to keep other employees from lowering the setting, and she told the other
Howard's diary also states that on January 23, 1994, Daake called Pat Kiger a 2

"bitch" during a dispute about the coffee maker. 

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employees to "leave the heat alone." 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 found for Howard. On the constructive discharge claim, the jury awarded

Howard $4,400 in economic damages, $25,000 in compensatory damages, and $75,000

in punitive damages. The jury awarded Howard $1,000 compensatory and $2,000

punitive damages on the sexually hostile work environment claim.

Burns Brothers moved for judgment as a matter of law, new trial, and reduction

or elimination of compensatory and punitive 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
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verdict, giving the party who prevailed before the jury the benefit of all reasonable

inferences. 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. Hathaway 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

sexual harassment; (3) the harassment was based on sex; (4) the

harassment affected a term, condition, or privilege of employment; and (5)

[Burns Brothers] knew or should have known of the harassment and failed

to take proper remedial action.

Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993). Harassment

affects a term, condition, or privilege of employment if it is "sufficiently severe or

pervasive to alter the conditions of the victim's employment and create an abusive

working 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

include "the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee's work performance." Id. at 23.
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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 was

subjected to conditions amounting to an abusive working environment, and second, that

Burns Brothers took prompt remedial action when notified of the Cameo Svavari

complaint.

We are convinced that there is evidence of offensive conduct in this case. Two

aggravating factors are present, unwanted physical contact when Daake allegedly

brushed against Howard behind the fuel desk, and frequency of the conduct, since

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, the

determination of whether the conduct rose to the level of abuse is largely in the hands

of the jury. See Hathaway, 132 F.3d at 1221.

Justice Scalia pointed out in his concurring opinion [in Harris] that since

Congress set no clear standard defining a hostile environment, it must be

left to "virtually unguided juries" to decide whether particular conduct is

"egregious enough" to merit an award of damages. There is no bright line

between 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 for remediation, Burns Brothers relies on the evidence in the light most

favorable to it, that John Wood gave Daake a serious warning when he first became

aware of improper conduct--at the time of the Svavari complaint. After that time,
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Howard admitted Daake did not brush against her anymore, although she testified that

he said he could "warm her up" in connection with the thermostat dispute. But Howard

testified that she had complained to John Wood about Daake long before the Svavari

complaint, and that Wood did nothing. Howard therefore made a submissible case that

Burns Brothers management knew of Daake's conduct, but failed to put a stop to it

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 constructively discharged in retaliation for helping

Cameo Svavari 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]

undermined by John Wood, [so that] Howard could not effectively do her job, and

quit." Burns Brothers argues that Howard failed to show she was constructively

discharged or that Wood's treatment of Howard was retaliation for the Svavari

complaint. 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 thermostat

setting.

To establish a case of Title VII retaliation, Howard had to show: (1) that she

engaged in 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).
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Howard's theory of the adverse employment action was that she was

constructively discharged by Wood's conduct towards her after the Svavari complaint.

She contends that Wood was cold to her and would not talk to her, and that it "was

impossible for Howard to have done her job without the backing of her general

manager, John Wood." She testified that after the Svavari complaint, rather than speak

to her, Wood left her notes about what needed to be done. 

Burns Brothers contends that Howard did not prove facts sufficient to permit a

jury to find she was constructively discharged.

To constitute a constructive discharge, the employer must

deliberately create intolerable working conditions with the intention of

forcing the employee to quit and the employee must quit. The plaintiff

can satisfy the intent requirement by demonstrating that he quit as a

reasonably foreseeable consequence of the employer's discriminatory

actions.

A constructive discharge arises only when a reasonable person

would find the conditions of employment intolerable.

Tidwell, 93 F.3d at 494 (citations omitted). 

Our recent cases have struggled with the question of what type of conditions are

"intolerable" for constructive discharge purposes. "A plaintiff must show more than

just a Title VII violation by her employer in order to prove that she has been

constructively discharged." Coffman, 141 F.3d at 1247 (citing Tidwell, 93 F.3d at

495). In Tidwell, an employee who worked in an environment that was "tinged with

discriminatory acts" was nevertheless not constructively discharged, because the acts

were not so severe that a reasonable person would have found them intolerable. Id. at

497. Similarly, in Hanenburg v. Principal Mutual Life Insurance Co., 118 F.3d 570

(8th Cir. 1997), we affirmed summary judgment for the employer in a disparate
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treatment case, holding that the employee did not make a prima facie case of

constructive discharge, though she produced evidence that "her supervisors scrutinized

her behavior in the workplace more closely than it [sic] did other employees." Id. at

575. We stated that this discriminatory conduct could not, as a matter of law, suffice

to establish constructive discharge: "While all this no doubt made work less enjoyable

for Hanenburg and might have induced stress for her, there is simply not enough

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

have 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.3d 349, 356-57 (8th Cir. 1997), based on a hostile environment. We held that the

hostile environment was bad enough to constitute constructive discharge, because the

harassment--racial slurs--came from the plaintiff's supervisor and the offending

language was not only used in the plaintiff's presence, but was directed at him. Id. at

356. In Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997), we

emphasized management's indifference to the employee's complaints of hostile

environment in affirming the plaintiff's verdict on constructive discharge: "If an

employee 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 the

constructive discharge judgment in Coffman, in part because the employee had an

avenue of redress within the company and failed to use it. 141 F.3d at 1247-48.

Accord Knowles v. Citicorp Mortgage, Inc., 1998 WL 191163, No. 97-3302, slip op.

at 8 (8th Cir. April 23, 1998) (affirming summary judgment for employer on

constructive discharge claim because employee did not pursue internal grievance

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; employer

must show that it had sufficient anti-harassment policy and that plaintiff unreasonably
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failed to take advantage of any preventive or corrective opportunities provided by the

employer or to avoid harm otherwise).

In this case, the alleged retaliatory conduct came from Howard's supervisor, a

factor which pointed to constructive discharge in Delph. On the other hand, Burns

Brothers had posted a corporate policy against sexual harassment at the Overton truck

stop. The policy included a phone number of a contact person at the corporate

headquarters in Portland, Oregon, for any complaints that were not resolved

satisfactorily at the local level. Howard 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 Brothers provided. "If an employee quits without giving her employer a

reasonable chance to work out a problem, then she has not been constructively

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 therefore hold that considering the evidence in the light most favorable to

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 failed to prove an essential element of her

retaliation claim. It is therefore not necessary for us to consider whether she proved

that the reason for the "adverse employment action" was retaliation for her role in the

Svavari 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.
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A.

The jury awarded compensatory damages of $1,000 on the hostile environment

claim and $25,000, plus lost wages and benefits of $4,400, on the constructive

discharge claim. Since we reverse on the constructive discharge claim, we need only

consider the $1,000 award on the hostile environment claim. 

Under the Civil Rights Act of 1991, victims of intentional discrimination

prohibited by Title VII may recover compensatory damages for "future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other nonpecuniary 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 she

suffered mental anguish as a result of her experiences at Burns Brothers.

Burns Brothers argues that Howard did not present "competent" evidence of

emotional injury. Howard and her husband's testimony were competent evidence on

the subject of her emotional distress. See Kim v. Nash Finch Co., 123 F.3d 1046, 1065

(8th Cir. 1997). 

Burns Brothers also argues that the award was excessive. The evidence was

sufficient to support the $1,000 award for maintaining a hostile environment.
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B.

The jury awarded Howard punitive damages of $2,000 on the hostile

environment claim and $75,000 on the constructive discharge claim. Again, because

of our disposition of the constructive discharge claim, we need consider only the

$2,000 award on the hostile environment claim. A Title VII plaintiff may recover

punitive damages under 42 U.S.C. § 1981a (b)(1) if he demonstrates that the defendant

engaged in discriminatory practices "with malice or with reckless indifference to the

federally protected rights of an aggrieved individual." Section 1981a requires a

showing of more than intentional discrimination to support an award of punitive

damages. Browning v. President 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), cert. denied, 117 S. Ct. 1692 (1997). See also Varner v. National Super

Markets, Inc., 94 F.3d 1209, 1214 (8th Cir. 1996) (insufficient case for punitive

damages where seventeen-year-old girl twice 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 regular notice to John Wood. Howard testified that Daake's pattern of sexual

innuendo and intentional touching was chronic and began as soon as she started

working at Burns Brothers in 1990. She said that when she complained to John Wood,

he said, "That's just Keith." Howard 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 about

Daake's harassment of other employees, such as Linda Wolf and Cameo Svavari. Cathy

Piska also testified that she complained directly to John Wood. Pat Kiger said she
In 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 evidence. Because

Burns Brothers made no showing of miscarriage of justice, we need not reach the

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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 regional 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 great

length" about the Daake problem.

Management's practice of turning a blind eye to repeated complaints of

misconduct was sufficient to demonstrate "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 offensive touching in his presence. This

evidence was sufficient to support submission of punitive damages to the jury under the

federal "reckless indifference" standard, as well as to support the $2,000 amount

awarded. 

V.

Burns Brothers 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. The

district court's denial 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 3
constitutional question here. 

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show that a new trial was necessary to avoid a miscarriage of justice. Id. Burns

Brothers has made no such showing. 

Burns Brothers also contends that the district court erred in submitting an

instruction that the jury could consider evidence outside the relevant time period in

evaluating the events that occurred during the relevant time. Burns Brothers also

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.