## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1030

___________ George E. Bailey, * * Appellant, * * v. * Appeal from the United States District * Court for the District of Minnesota. Marvin T. Runyon, Jr., Postmaster * General; United States Postal Service, * * Appellees. *

___________ Submitted: October 21, 1998 Filed: February 8, 1999

___________ Before WOLLMAN, ROSS and BEAM, Circuit Judges.

___________ ROSS, Circuit Judge.
George E. Bailey appeals from the district court's grant of judgment as a matter of law (JAML) in favor of hi s employer, the United States Postal Service, and Marvin T. Runyon, Postmaster General, (collectively "the Service"), on his sexual harassment claim under Title VII, 42 U.S.C. § 2000e et seq. (1994). We reverse and remand.-2-

Vi ewed in a light most favorable to Bailey, the evidence at trial, and al l

reaso nable inferences therefrom, reveals the following. Shortly after Bailey bega n working at a post office in March 1993, Bob Tylon, a co-worker, began asking Bailey if he would like to have a sexual relationship. Bailey said no, explaining he was not a homosexual. However, Tylon persisted in asking for a sexual relationship, including requests to perform oral sex on Bailey. In mid-April, Bailey informed his supervisor, Valer ie Ellms, about Tylon's sexual advances. Ellms laughed and did nothing

. Because Tylon persisted in asking for sexua l favors, Bailey again talked to Ellms, who told him to po int out Tylon to her if the conduct continued. Although Bailey late r pointed out Tylon to Ellms, she again did nothing and the conduct continued.
On August 28, Tylon asked Bailey to read a note he had written. After Bailey refused, Tylon grabbed Bailey's crotch. When Bailey recoiled, Tylon again grabbe d Bailey's c rotch and requested to perform oral sex on him. Bailey was upset and lef t work. The next day Bailey told Ellms' supervisor, Va nessa Kellum, about the touching in cident and that he was thinking of quitting because of Tylon's conduct. O n September 6, Kellum told Bailey to fill out an i ncident report and that she would speak to Tylon. The nex t day, Kellum told Tylon to stay away from Bailey and warned that if his behavior continued, drastic action would follow. In a September 9 inciden t repor t, Bailey stated that since he began working at the post office Tylon ha d "constantly sexually harassed" him by "asking . . . [to] perform sex on [him] . . . and partake in other sexual activities." Baile y also stated that although he had reported the acts to his supervisor, it appeared that nothing had been done to "stop the pervasiv e sexual acts."-3-

After Kellum's warning, Tylon had no contact with Bailey until a November 5 encounter in a restroom. At that time, Bailey wa s washing his hands when Tylon, who had been using a urinal, turned, without zipping his pants, to Bailey and told him of the discussion with Kellum. Bailey walked out of the restroom and on November 10 filed an incident report, noting the rest room encounter and the August 28 touching incident. After Brent Woodfeld, Tylo n's supervisor, received a copy of the report, he instructed Tylon to hav e no contact with Bailey and warned if he did, he would be fired

. Wo odfeldalso changed Tylon's work assignment so that he would not work with Bailey. Following Woodfeld's warning, Tylon had no further contact with Bailey.
Bailey cl aimed that Tylon's conduct caused him mental anguish, both at wor k and at home. Bailey also testified that since the harassment he had experienced anxiety attacks, had seen a counselor and was taking anti-depressants. On cross-examination, however, Bailey admitted that during the time he had been harassed by Tylon he had been seeing a doctor for a shoulder injury and had never mentioned the harassment

. He further a dmitted that he did not see a counselor until June 1994 and that th e counselor's notes did not mention the harassment, but only indicated that Bailey sought help for anxiety due to public speaking.
Pursuant to a special verdict form, the jury found that Baile y had been subjected to sexual harassment and that the Service had failed to act after receiving notice of the harassment, but that Bailey had not suffered damages. Bailey and the Service file d post-trial motions. The district court granted the Service's motion for JAML, holding that it had taken prompt remedial action to end the harassment, and denied Bailey' s motion for JAML or in the alternative for a new trial on damages as moot.-4-

On appeal, Bailey argues the district court e rred in granting the Service's motion for JAML. Because "[t]he law places a high standard on overturning a jury verdict[,]" JAML "is proper '[o]nly when there is a complete absence of probative facts to support the conclusion reached' so that no reasonable juror could have found for th e
no nmoving party." Hathaway v. Runyon , 132 F.3d 1214, 1220 (8th Cir. 1997 ) (quoting Ryther v. KARE 11 , 108 F.3d 832, 845 ( 8th Cir.) (en banc), cert. denied , 117 S. Ct. 2510 (1997)). Al though we review the district court's grant of JAML de novo, in so doi ng, we "must assume as proven all facts that [Bailey's] evidence tended t o show, give h[im] the benefit of all reasonable inferences, and assume that all conflicts in t he evidence were resolved in h[is] favor." Id. We will affirm the grant of JAML only "when 'all the evidence points in on e direction and is susceptible to no reasonable inte rpretation supporting the jury verdict.' " Id. (quoting Mears v. Nationwide Mut

. Ins. Co. , 91 F.3d 1118, 1122 (8th Cir. 1996)).

Because Bailey's claim involved harassment by a co-worker, he had to sho w actionable sexual harassment and that the Service " 'knew or should have known of the harassment and f

ailed to take proper remedial action.' " Howard v. Burns Bros., Inc. , 149 F.3d 83 5, 840 (8th Cir. 1998) (quoting Kopp v. Samaritan Health Sys., Inc. , 1 3 F.3d 264, 269 (8th Cir. 1993)); see also Faragher v. City of Boca Raton , 118 S. Ct

. 2275, 2289 (1998) (courts "uniformly judg[e] employer liability for co-worke r harass ment

under a negligence standard"); Sharp v. City of Houston , No. 97-20602 , 1999 WL 10153, at *4 (5th Cir. Jan. 12, 1999) (noting Faragher did not distur

b "negli gence standard govern[ing] employer liability for co-worker harassment") ; Adusu milliv. City of Chicago , No. 98-1019, 1998 WL 901533, at *6 (7th Cir. Dec

.We note that in Oncale v. Sundowner Offshore Serv., Inc. , 118 S. Ct. 998, 1003 1 (1998), the Supre me Court held that "same-sex sexual harassment is actionable under Titl e VII." We also note that in Faragher , 118 S. Ct. at 2292-93, and Burlingto n Indus., I nc. v. Ellerth , 118 S. Ct. 2257, 2270 (1998), the Supreme Court held that an employ er is vicariously liable for harassment by a plaintiff's supervisor, subject t o certain defenses. -5- 28, 1998) (same). Bailey argues the court erred in holding as a matter of law that the 1 Se rvice took proper remedial action because his evidence was that Ellms did nothing

a f ter he reported Tylon's requests for sexual favors. Bailey also argues that Kellum's and Woodfel d's warnings to Tylon were inadequate, asserting that Tylon should have been fired, or at least suspended.

The Service correctly responds that Title VII "does not require an employer to fire a haras ser." Davis v. Tri-State Mack Distrib., Inc. , 981 F.2d 340, 343 (8th Cir

. 19 92). "Rather, what an employer must do is to take 'prompt remedial actio n reasonabl y calculated to end the harassment.' " Id. (quoting Barrett v. Omaha Nat

. Bank , 726 F.2d 424, 427 (8th Cir. 1984)). TheService goes on to argue that its action

was eff ective because after Kellum's warning, Tylon did not intentionally contac t Bailey, and after Woodfeld's warning and change of Tylon's work assignment, ther e was no further contact. However, even if we assume that tho se actions were sufficient, the Service neglects the fact that Bailey testified that he had "complained to [Ellms ] about [Tyl on] long before the [Kellum] complaint, and that [Ellms] did nothing. " Howard , 149 F.3d at 841. Thus, there is evidence s upporting the jury's finding that the Servic e "knew of [Tylon's] conduct, but failed to put a stop to it promptly." Id. ; se e also Williamson v. City of Houston , 148 F.3d 462, 4 65 (5th Cir. 1998) (city had notice of harassment before formal complaint because plaintiff had discussed co-worker' s-6-

harassing be havior with supervisor who did nothing); Bales v. Wal-Mart Stores, Inc. , 143 F.3d 1103, 1110 (8th Cir. 1998) (although employer may have taken remedia l action after las t complaint it was liable because it failed to take action following prior complaints of harassment).

A p parently realizing the flaw in its remedial action argument, at oral argument the Service suggested that this case could be affirm ed on the basis that Tylon's conduct before the August 28 touching incident did not constitute a ctionable sexual harassment. We disagree. "To be actionable, the sexual harassment must have been [objectivel y and subjectively] 'sufficiently seve re or pervasive to alter the conditions of the victim's emp loyment

and create an abusive working environment.' " Hathaway , 132 F.3d a t 1221 (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 2 1 (1993)). " '[S]imple teasing

. . . of fhand comments, and isolated incidents (unless extremely severe) will no t amount to discriminatory changes in the terms and conditions of employment.' " Breeding v. Arthur J. Gallagher & Co. , No. 98-1338, 1999 WL 13265, at *6 (8th Cir. Jan. 15, 1999) (quoting Faragher , 118 S. Ct. at 2283). However, because "[t]here is no bright line between sexual harassment and merely unpleasant conduct[,] . . . a jury's decision must generally stand." Hathaway , 132 F.3d at 1221; see also Howard , 14 9 F.3d a t 840 ("Once there is evidence of improper conduct and subjective offense, the determination of w hether the conduct rose to the level of abuse is largely in the hands of the jury.").

Here, t here was sufficient evidence to support the jury's finding of harassment. In h is September 9 incident report, Bailey stated that almost from the start of hi s employ ment Tylon had "constantly sexually harassed" him by asking to "perform sexAlthough at one point, Bailey testified that after he reported Tylon's conduct to 2 Ell ms, Tylon kept "asking me out," this seemingly innocent characterization of th e conduct mus t be considered in the context of Tylon's repeated requests for a sexua l relations hip. See Hathaway , 132 F.3d at 1222 (humiliating effect of "snickers an d noises" considered in context of earlier sexual overtures). -7- on [him] and partake in other sexual activities." Bailey testified that Tylon mad e unwelcom e sexual advances, including requests to perform oral sex on him, three t o four times a week. S ee Kinman v. Omaha Pub. Sch. Dist. , 94 F.3d 463, 467 (8th Cir. 1996 ) ("sexual harassment occurs when unwelcome sexual advances, requests fo r sexual fav ors, or other verbal or physical contact . . . creat[e] an intimidating, hostile,

or offensive environment"), overruled on other grounds by Gebser v. Lago Vist a Indep. Sch. Dist. , 118 S. Ct. 1989 (1998). Baile y also testified that he had considered quit ting because of Tylon's conduct. See Bales , 143 F.3d at 1109 ("conditions o f employment are altered by harassment if the employee is discouraged from remaining in [the] job"). Thus, the jury could have reasonably concluded that Tylon's "conduct created an objectively hostile environment and that [Bailey] subjectively perceive d [his] working conditions as abusive." Hathaway , 132 F.3d at 1221; see also Breeding , 1998 WL 13 265, at *5 (fondling of genitals and using lewd language in front o f plaintiff constitu ted actionable harassment); Howard , 149 F.3d at 840 (chronic sexual innuendos and unwanted

physical touching constituted actionable harassment); Bales , 143 F.3d at 1109 ("pattern of offensive conversation and behavior" constitute d actionable harassment); cf. Rorie v. United Postal Serv., Inc. , 151 F.3d 757, 762 (8th Cir. 1998) ("we cannot say that a su pervisor who pats a female employee on the back, brush es up against her, and tells her she smells good does not constitute sexua l harassment as a matter of law"). 2-8-

The Service s uggests that Bailey's testimony was incredible, noting conflicts in the ev idence and issues affecting Bailey's credibility. However, the jury, who wa s aware of these matters, was responsible for assessing credibi lity and resolving conflicts in the evidence. See Hathaway , 132 F.3d at 1223.

Becaus e the district court granted the Service's motion for JAML, it did no t address the merits of Bailey's post-trial motion on damages. This court has held that " ' [t]he auth ority to grant a new trial . . . is confided almost entirely to the exercise of discretion on the part of the trial court.' " Sanford v. Crittenden Mem'l Hosp. , 141 F.3d 882, 884 (8th Cir. 1998) (quoting Allied Chem. Cor p. v. Daiflon, Inc. , 449 U.S. 33, 36 (1980)). Ind eed, "[i]t has long been our opinion that the matter is 'basically, an d should be, . . . for the trial court which has had th e benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the community and its standards.' " Id. (quoting Solomon Dehydrating Co. v. Nodak Oil Co. , 294 F.2d 439, 447 (8th Cir. 1961) (Blackmun, J.)); see also Johnson v. Cowell Steel Structures, Inc. , 991 F.2d 474, 476 (8th Cir. 1993) (appeal of ruling on motion f or new trial on damages "focuses our attention on the propriety of the district court's action, and not the jury's"). Thu s, on remand the district court should address Bailey's arguments concerning th e ju ry's failure to award damages. We note at oral argument that although the Servic e opposed a ne w trial on damages, it stated that if the case was reversed, an award o f nominal damages and attorney's fees would be appropriate.

Acco rdingly, we reverse the judgment of the district court and remand fo r further proceedings consistent with this opinion.-9-

A true copy.

Attest:

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