United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-4241

___________

Mary Jane Hathaway, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Marvin Runyon, Postmaster General, *

*

Defendant - Appellee. *

___________

Submitted: September 9, 1997

Filed: December 29, 1997

___________

Before McMILLIAN, HANSEN, and MURPHY, Circuit Judges.

___________

MURPHY, Circuit Judge.

Mary Jane Hathaway sued her employer, Marvin Runyon, Postmaster General,

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., claiming

sexual harassment and discriminatory retaliation. The jury found for Hathaway on the

sexual harassment claim and awarded her $75,000 in compensatory damages, but it

found for Runyon on the retaliation claim. The district court then granted Runyon’s

motion for judgment as a matter of law on the harassment claim and ordered that

judgment be entered in his favor in all respects. Hathaway appeals from only that

portion of the judgment that deprives her of the jury verdict on her sexual harassment

claim. We reverse.
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I.

We state the facts in the light most favorable to Hathaway, as we must when

deciding whether the jury verdict was properly overturned. See Ryther v. KARE 11,

108 F.3d 832, 844 (8th Cir.) (en banc), cert. denied, 117 S.Ct. 2510 (1997).

Hathaway had been employed by the postal service for twelve years at the main

postal facility in Omaha, Nebraska when the events about which she complains took

place. She worked both as a distribution clerk and a relief expediter on a shift from 2:30

pm to 11:00 pm. She received a higher level of pay for the expediting work. Her work

generally involved labeling mail on the flat sorter and dispatching mail from it for pickup

by mail trucks. The flat sorter is an automated machine that sorts pieces of mail that are

larger than a standard letter envelope and labels them according to destination.

Hathaway alleged that she suffered from a hostile work environment based on sex

that began with several incidents involving her coworker, Neal Norris. Norris began to

act differently towards her in August of 1992, while he was training her for expediting

duties. He started getting physically close and making peculiar comments, telling her

that other workers believed they were romantically involved. This change in his

behavior made her uncomfortable, and she tried to respond in a way that made it clear

that his sexual interest in her was unwelcome. She told him that they both knew that any

rumors about them would be untrue.

His conduct became more aggressive, however, and he made physical sexual

advances. During the Christmas rush in December of 1992, he hit her on the buttocks

with a clipboard while they were together in an enclosed stairwell. She turned around

and gave him a look that she thought would put an end to such behavior. About a week

later, he again approached her from behind and squeezed her buttocks while she was

waiting for an elevator. A short time later Hathaway told Norris not to touch her again
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because it made her feel uncomfortable and she did not like it. Norris looked displeased

and responded by saying “well” and laughing. Hathaway stopped working with Norris

and avoided talking or interacting with him.

After Hathaway rebuffed Norris’ advances, he began to snicker and laugh at her,

making guttural noises when she walked by him. He also stared at her with a menacing

look. Starting in January of 1993, a coworker and friend of Norris, Dennis Wynn, began

to act similarly whenever he saw Hathaway. At four different points in her trial

testimony Hathaway imitated for the jury the sounds made at her by Norris and Wynn.

The sounds could not be captured in the trial transcript, but at oral argument her counsel

described one as a purring or growling noise made in the throat and defense counsel

described another as a clicking of the tongue. Norris and Wynn continued to leer,

snicker, laugh, and make insinuating noises for the next eight months.

Hathaway described for the jury how she felt every day when she went to work

and what it was like for her to carry out her duties under these conditions. She was very

upset and afraid because she believed that Norris intended to retaliate against her for

turning down his sexual overtures. Hathaway explained that her fear was based on what

she felt was a connection between Norris’ advances and physical touchings and the

sounds he and Wynn made whenever they saw her. She was intimidated by the snickers

and noises and became very anxious, avoiding Norris and Wynn by hiding in the

bathroom and worrying about what they would do next. Hathaway testified that she was

depressed and lost interest in doing anything outside of work. She was unable to sleep

at night and found that she did not care whether she got out of bed in the morning. She

was tired all the time and no longer cared about her job. She felt that her job

performance was deteriorating because of her feelings of anxiety, depression, and

indifference.

On January 19 Norris and Wynn reported Hathaway to a supervisor for

mislabeling mail, and she believed that their report was further retaliation for rejecting
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Norris. There was conflicting evidence at trial about the mislabeling incident. The

evidence in Hathaway’s favor indicated that incorrect labels had been put in the flat

sorter by other clerks and that she was replacing them when Wynn walked by. He

summoned Norris and they reported the incorrect labels to her supervisor. Norris

acknowledged at trial that Wynn did not need to check with him about the labels. Wynn

was unable to identify the incorrect labels when he tried to talk with Hathaway about the

situation, and later that day he snickered and laughed as he walked by her work station.

When Hathaway was forced to work near Norris and Wynn, her anxiety level

increased. On one occasion in early February of 1993, she was in the small label room

on the mezzanine manually stamping labels. The room was a narrow one, just wide

enough for a table running the length of the room with three chairs behind it. She was

working from a chair against the wall opposite the entrance when Wynn came in and sat

in the closest chair between her and the door, followed by Norris who entered and seated

himself on a ledge directly behind her after plugging in his portable television.

Hathaway testified that she was scared to death and did not dare to move or leave the

room because that would involve passing very close to both men. She stayed where she

was until her boyfriend, Chuck Prestito, arrived and the other two left. Later in

February, Hathaway's duties on the flat sorter were given to Wynn, and she was required

to do manual flat sorting in close proximity to him.

Hathaway reported the harassment to the equal employment opportunity (EEO)

office at the postal facility on January 20, 1993. The previous day she had received a

written statement from John Gladfelter who had seen Norris hit her on the buttocks in

December. His statement described what he had seen and supported her claim. She

reported that Norris had touched her twice on the buttocks and that he and Wynn had

been leering at her, making strange noises, and snickering. She told the EEO

counselor/investigator, Nikki Neagu, that she wanted the harassing behavior to stop.

Neagu told Hathaway she needed to discuss the incidents with John Wacha, the
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supervisor of Norris and Wynn, before EEO could take any action. The postal service

sexual harassment policy states that employees may report sexual harassment to an

impartial supervisor, but not that they must do so. Hathaway agreed to talk to Wacha,

but indicated to Neagu that she did not think he would assist her because he was a friend

of Norris. Neagu did not explain to Hathaway the process for filing a complaint, nor did

she give her any brochures on sexual harassment or on postal service policy for handling

these kinds of complaints.

Hathaway took complaints of sexual harassment to supervisor Wacha on two

occasions -- on January 20 after talking to EEO and again in February after she was

crowded in the label room. She informed him that she had a witness to one of the

physical incidents and requested that Norris and Wynn be kept away from her or that

something be done to stop their harassment of her. Wacha did not ask to see the witness

statement or even ask for the name of the witness. Hathaway asked Wacha to sign a

statement verifying that she had reported her allegations to him in order to let the EEO

office know that she had followed its directions. Wacha refused to sign the statement

that she had drafted and did not offer to write or otherwise alert EEO that she had

contacted him about her concerns.

Wacha testified at trial about his normal procedure in investigating a complaint

of sexual harassment. He said he would interview the parties involved and any witnesses

and then make a written report of his investigation and conclusions. In response to

Hathaway’s complaint he discussed her allegations with Norris and Wynn who both

denied that they had engaged in any harassing conduct. He never attempted to identify

or speak to Hathaway’s witness and did not interview her again before completing his

investigation. Wacha testified that he instructed Norris and Wynn to stay away from

Hathaway after her first complaint in January, but he did not reprimand them for

disobeying that instruction after she reported that they had crowded into the small label

room with her in February. Wacha said no one had witnessed any of the incidents and

he had concluded that Hathaway’s allegations were untrue. He thus
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ignored the existence of a corroborating witness and never made a written report of his

investigation or notified Hathaway of the results.

Hathaway also made repeated complaints to the lead plant manager of the Omaha

postal facility, Mike Matuzek, and to the EEO office, none of which produced any

change in her work environment. These reviewers focused on her claim of retaliation

rather than on her sexual harassment complaint. Her first letter to Matuzek stated she

had been told that her only available remedy for Norris’ physical advances and the

subsequent harassment directed at her was to report them to his supervisor but that

supervisor was not impartial. She asked Matuzek for guidance as to what she could do

to stop the offensive behavior; she never received a response. Matuzek testified that he

did not recall having seen her first letter, but it was produced at trial with a date stamp

on it indicating that it had been received sometime in February. After her expediting

duties were reassigned to Wynn, Hathaway wrote to Matuzek again to ask whether the

reassignment had anything to do with her earlier letter. Matuzek responded to this letter,

but he did not address her references to her previous request for his assistance or her

concerns about sexual harassment. He only stated that her expediting duties had been

shifted to someone who had been underutilized.

Hathaway submitted a request for counseling to the EEO office on February 22.

That office issued her a notice repeating Matuzek’s message about the reassignment

without discussing her sexual harassment complaint. EEO informed her that she had a

right to file a formal complaint of discrimination if its response did not resolve her

concerns. She filed a formal complaint on March 22, 1993, requesting that Norris be

transferred to another area and that she be given back her duties on the flat sorter.

Hathaway also sought outside assistance at this point. She was a resident of Iowa,

and she contacted Senator Tom Harkin who wrote a letter to Matuzek asking him to

review the issues raised by her complaints of sexual harassment and retaliation.

Hathaway later met with the local president of the postal workers union, Jim Strawn,
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to tell him her working conditions had become unbearable. Strawn wrote a letter to

Matuzek asking management to correct the environment of ongoing sexual harassment.

Matuzek did not respond by looking into Hathaway’s work environment; instead he gave

both Senator Harkin and Strawn a status report that did not contain any substantive

information or indicate any management attempt to remedy the situation.

Two of Hathaway’s coworkers, John Gladfelter and Kenneth Haines, corroborated

her story. Both testified that between August and December of 1992 they would often

see Hathaway and Norris working together. Whenever Haines encountered Hathaway

and Norris in the mezzanine label room and engaged her in conversation, Norris would

get upset and leave abruptly as if he were disturbed that someone else was talking to her.

 Gladfelter spoke to Hathaway shortly after he saw Norris hit her on the buttocks to tell

her he had seen the incident, was surprised by it, and expected her to be upset and

offended. Hathaway asked him to give her a written statement to help her establish the

facts necessary to file a sexual harassment complaint, and he furnished it on January 19,

1993. Gladfelter testified at trial that he never saw Hathaway and Norris working

together again after the incident. Neither Gladfelter nor Haines was interviewed by EEO

staff or management.

On November 3, 1993, Hathaway received a letter from EEO stating that the

investigation of her complaint had been completed. She was provided with a copy of the

investigative file and told that she could request either a hearing before an administrative

judge from the Equal Employment Opportunity Commission or a final agency decision

from the postal service on her complaint. She requested the latter, and the postal service

issued a decision finding that she had failed to establish her claims of hostile

environment sexual harassment and discriminatory retaliation.

Hathaway filed suit in federal court, claiming that the pattern of harassing conduct

by Norris and Wynn after her rejection of Norris’ physical advances made her afraid and

anxious and that it discriminatorily altered her working conditions.
Wynn complained on January 20 that he had been threatened by Prestito the

1

prior evening after he had reported the mislabeling. Prestito was sent home as a result,

but was later allowed to return after an investigation revealed that there had been no

physical threat. Hathaway also made her complaint to the EEO office and Wacha on

January 20, but before Wynn reported Prestito.

Wynn won a damage award of $1,000 on his defamation claim, and an appeal 2

is pending in the Norris case from a finding that the allegedly defamatory statements

were true.

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Hathaway presented evidence that management ignored her repeated complaints, failed

to investigate or take any kind of corrective action, and retaliated against her by

removing her more highly paid duties. Runyon argued that Hathaway’s allegations were

vague and unsubstantiated and were motivated by reports Norris and Wynn made about

mislabeled mail and a threat from Chuck Prestito. Runyon also claimed that

1

management had conducted a proper review and noted that Norris and Wynn had filed

state court defamation suits against Hathaway because they were afraid of losing their

jobs because of her allegations. Hathaway argued that the defamation actions were

merely an attempt to intimidate her into dropping her allegations and that Wacha assisted

Norris and Wynn in bringing them.2

The jury deliberated one full day and returned a verdict rejecting Hathaway’s

retaliation claim but awarding her $75,000 in compensatory damages on her sexual

harassment claim. The district court ordered judgment entered in defendant’s favor after

it granted his motion for judgment as a matter of law. It believed that there was

insufficient evidence for Hathaway because “if that type of conduct can rise to the level

of a sexual harassment claim in this country, we’re in deep trouble because it does go

on in the workplace.” Although the court said that it was giving her the benefit of

inferring that the snickering and laughing “grew out of” the buttocks touchings, it said

that she had not been “subjected to sexually motivated conduct” other than for those two

incidents. It found both that the conduct was not severe enough to affect “a
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reasonable person in the plaintiff’s position” and “specifically that the management . .

. did implement proper remedial action.”

On appeal, Hathaway contends that the district court misapplied governing law

in overturning the jury verdict and did not consider the evidence in the light most

favorable to her. She argues that there was sufficient evidence for the jury to conclude

that she was forced to work in a discriminatorily hostile work environment and that

management failed to take appropriate remedial action in response to her repeated

complaints. Runyon responds that Hathaway failed to demonstrate that the behavior at

issue was sex based, that it was sufficiently severe or pervasive to constitute a hostile

work environment, and that management’s remedial efforts were insufficient. Runyon

does not, however, challenge the amount of compensatory damages or contend that the

court erred in the admission of evidence or in instructing the jury.

II.

The law places a high standard on overturning a jury verdict. Judgment as a

matter of law 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 the

nonmoving party. See Ryther, 108 F.3d at 836, 845 (quoting Lavender v. Kurn, 327

U.S. 645, 653 (1946)). On such a motion the court must assume as proven all facts that

the nonmoving party’s evidence tended to show, give her the benefit of all reasonable

inferences, and assume that all conflicts in the evidence were resolved in her favor. See

id. at 844 (quoting Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir.

1996)). The grant of a motion for judgment as a matter of law will only be affirmed

when “all the evidence points in one direction and is susceptible to no reasonable

interpretation supporting the jury verdict.” Mears v. Nationwide Mut. Ins. Co., 91 F.3d

1118, 1122 (8th Cir. 1996). The question of whether there is sufficient evidence to

support a jury verdict is a legal one, see Jarvis v. Sauer Sundstrand Co., 116 F.3d 321,

324 (8th Cir. 1997) (quoting White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992)), and
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the district court’s decision to grant a motion for judgment as a matter of law is therefore

reviewed de novo, see Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996).

Title VII is violated when workplace harassment based on sex creates a hostile

work environment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66-67 (1986). To

be actionable, the sexual harassment must have been “sufficiently severe or pervasive

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

environment.” See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting

Meritor, 477 U.S. at 67). A single offensive utterance or exposure to distasteful conduct

does not rise to the level of a Title VII violation. See Meritor, 477 U.S. at 67; Lam v.

Curators of the Univ. of Mo., 122 F.3d 654, 656-57 (8th Cir. 1997). The plaintiff must

show both that the offending conduct created an objectively hostile environment and that

she subjectively perceived her working conditions as abusive. See Harris, 510 U.S. at

21-22.

Evidence of conduct that creates a workplace permeated with “discriminatory

intimidation, ridicule, and insult” establishes a hostile environment claim under federal

law. See id. at 21. Title VII does not, however, create a cause of action for all

unpleasant or abusive behavior in the workplace. Rather, the plaintiff must show that

the conduct was discriminatory in nature and that she was singled out for such treatment

on the basis of her membership in a protected category under the statute. See, e.g.,

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

environment plaintiff must show that harassment was based on sex); see also 42 U.S.C.

§ 2000e-2(a)(1). In conducting its fact-based inquiry into the severity and pervasiveness

of the conduct and into whether it was based on sex, the jury looks at all the

circumstances supported by credible evidence. See Harris, 510 U.S. at 23.
These factors “may include the frequency of the discriminatory conduct; its

3

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.” 510 U.S. at 23.

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While Harris sets out examples of factors that can be considered in deciding

whether an environment is hostile, no single factor is required or determinative, and the 3

relevancy and weight of any factor must be evaluated in light of all the facts of a specific

case. Id. at 22-23. Justice Scalia pointed out in his concurring opinion 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. Id. at 24. 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. Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995) (Posner, J.)

(judgment for the plaintiff reversed where there was no physical touching, behavior was

not threatening or intimidating, and management took appropriate remedial steps).

In this case the jury was instructed that Hathaway had to prove six elements in

order to prevail:

(1) that she “suffered from discrimination because of her sex by the

intentional conduct of her fellow employees consisting of unwelcome

sexually motivated conduct or other unwelcome conduct which was

directed at [her] because she is female;”

(2) that “such conduct was sufficiently severe or pervasive to alter the

conditions of [her] employment and create an abusive working

environment;”

(3) that “such conduct detrimentally affected” her;
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(4) that “such conduct would have detrimentally affected a reasonable

person in [her] position;”

(5) that “management level employees knew, or should have known of

such conduct;” and

(6) that “management level employees failed to implement proper remedial

action.”

When viewed in the light most favorable to Hathaway, the evidence presented to

the jury, together with all reasonable inferences from it, was sufficient to support the

jury’s finding that she was subjected to hostile treatment on the basis of her sex and to

abusive working conditions. Hathaway was physically touched in a sexually suggestive

and intimate manner on two occasions by a coworker who had expressed a sexual

interest in her. After she rebuffed his advances, Norris and his friend Wynn proceeded

to laugh, snicker, and make suggestive noises at her for a period of eight months. This

treatment frightened and intimidated Hathaway. She feared that Norris would fondle her

again or undermine her work performance which he and Wynn did by wrongly reporting

her for mislabeling mail. She testified that she was terrified to pass within grabbing

range of either Norris or Wynn and that she felt trapped when they blocked her exit from

the narrow label room. The jury heard Hathaway reproduce the noises that disturbed

her, and it credited her position that this pattern of behavior created a hostile work

environment related to Norris’ earlier advances. See Hirase-Doi v. U.S. West

Communications, Inc., 61 F.3d 777, 780-83 (10th Cir. 1995) (a few incidents of

unwelcome physical touching combined with winks and intimidating stares with possible

sexual overtones is sufficient to establish a hostile environment).

A work environment is shaped by the accumulation of abusive conduct, and the

resulting harm cannot be measured by carving it “into a series of discrete incidents.”

Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992). Although the

district court correctly stated that the inference had to be drawn that the pattern of
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conduct presented in this case was all related, it did not proceed to review the sufficiency

of the evidence in that light. The humiliating and intimidating effect of the snickers and

noises on Hathaway could have been interpreted by the jury to be caused by the nexus

between that behavior and Norris’ earlier sexual overtures. See King v. Hillen, 21 F.3d

1572, 1583 (Fed. Cir. 1994) (plaintiff’s perception of any one incident of harassment

should be determined in the context of all incidents (citing 29 C.F.R. § 1604.11(b))).

The jury could reasonably have decided on the basis of this interpretation of the evidence

that Hathaway was the victim of menacing sex-based treatment that stemmed from her

rejection of Norris’ sexual interest in her.

Not every aspect of a work environment characterized by hostility and

intimidation need be explicitly sexual in nature to be probative. See Kopp, 13 F.3d at

269; Hall v. Gus Const. Co., Inc., 842 F.2d 1010, 1014 (8th Cir. 1988). The critical

inquiry is “whether members of one sex are exposed to disadvantageous terms or

conditions of employment to which members of the other sex are not exposed.” See

Harris, 510 U.S. at 25 (Ginsburg, J., concurring). Norris directed sexual comments and

physical advances toward Hathaway because she was a woman. See Kinman v. Omaha

Pub. Sch. Dist., 94 F.3d 463, 468 (8th Cir. 1996) (evidence of sexual advances directed

at plaintiff shows that she was targeted because of her sex). There was conflicting

evidence that created a jury question as to whether the subsequent behavior of Norris

and Wynn grew out of Hathaway’s rebuff to the advances made by Norris. The jury was

instructed that Hathaway had the burden of demonstrating that the conduct was directed

at her because of her sex, and it so found. The jury could also have reasonably found

to the contrary. It could have found that there was no connection between the physical

advances and the other offending behavior. Either finding would have had support in the

evidence, but it was the jury’s call. See, e.g., Ryther, 108 F.3d at 845 (“where

conflicting inferences reasonably can be drawn from evidence, it is the function of the

jury to determine what inference shall be drawn”) (quoting Anglen v. Braniff Airways,

237 F.2d 736, 740 (8th Cir. 1956)).
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Hathaway’s exposure to harassing conduct need not have been continuous in order

to have been pervasive. See Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir.

1997). Despite her complaints, she was forced to work in close proximity to Wynn,

which added to the hostility of her environment. See Konstantopoulos v. Westvaco

Corp., 112 F.3d 710, 717 (3d Cir. 1997) (assignment to work in close proximity to

harassers is significant factor in totality of circumstances inquiry). The jury was able to

evaluate the impact on Hathaway’s work environment by hearing her recreate the noises

and testify about how they made her feel and by considering the intimidating effect of

being alone and cornered by Norris and Wynn in the small label room. See Baskerville,

50 F.3d at 428 (discussing importance of context, presence or absence of other persons,

and physical propinquity in evaluating impact of harassment). Under the circumstances

the jury could reasonably have found that the harassment was sufficiently severe or

pervasive for Hathaway to succeed on her claim.

Runyon contends that a reasonable person would not have been detrimentally

affected by the conduct, and that Hathaway was not so affected because she did not seek

medical or psychiatric care, miss work, or receive bad performance evaluations. “[T]he

test is not whether work has been impaired, but whether working conditions have been

discriminatorily altered.” Harris, 510 U.S. at 25 (Scalia, J., concurring). Psychological

harm is relevant to this inquiry, but the plaintiff is not required to demonstrate medical

injury to succeed on her claim. See id. at 22-23. It is sufficient that Hathaway credibly

testified that she felt afraid, intimidated, and anxious, and that those feelings had a

detrimental impact on her psychological wellbeing and on her ability to perform her

work. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454-55 (7th Cir. 1994). As

Judge Posner pointed out in Baskerville, “[t]he concept of sexual harassment is designed

to protect working women from the kind of male attentions that can make the workplace

hellish for women.” 50 F.3d at 430. The jury heard Hathaway testify that she felt

trapped by Norris and Wynn in the small label room and that she regularly interrupted

her work in order to avoid encountering them. That she was still able to complete her

assigned tasks does not undermine the jury’s
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finding that a reasonable person subjected to this conduct “would find, as the plaintiff

did, that the harassment so altered working conditions as to make it more difficult to do

the job.” Harris, 510 U.S. at 25 (Ginsburg, J., concurring) (internal quotation marks and

brackets omitted). In this case, Hathaway presented sufficient evidence for the jury to

conclude that the discriminatory conduct rose to a level that unreasonably interfered with

her work performance.

Once an employee complains to her employer about sexual harassment by a

coworker, the employer is on notice and must take proper remedial action to avoid

liability under Title VII. See Davis v. Tri-State Mack Distrib., Inc., 981 F.2d 340, 343

(8th Cir. 1992). In reviewing the sufficiency of the evidence to support the jury’s finding

that management did not adequately respond to Hathaway’s complaints, a court must not

weigh or evaluate the evidence or consider credibility questions. See Hane v. Nat'l R.R.

Passenger Corp., 110 F.3d 573, 574 (8th Cir. 1997). The role of the court is restricted

because “if misused, judgment as a matter of law can invade the jury’s rightful

province.” Gardner, 82 F.3d at 251. In this case, the jury had to make credibility

determinations in order to resolve the parties’ conflicting evidence on the remedial action

taken.

The jury clearly focused on the issue of remedial action by the postal service

because it requested assistance from the court during its deliberations. It asked the

meaning of the word “remedial,” and the district court responded with Supplemental

Instruction A:

the word ‘remedial’ means affording remedy; tending to remedy something;

intended to correct a situation.

In returning a verdict in Hathaway’s favor the jury necessarily found that management

had failed to implement proper remedial action.
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The jury apparently did not credit testimony by defense witnesses that

management conducted a complete investigation into Hathaway’s complaint. No

investigation was initiated by the EEO office until Hathaway’s second request for

assistance. At the time of her first request, she was required to report the situation to

Norris’ supervisor whom she did not believe to be impartial. After Hathaway

complained to Wacha, he failed to interview her only witness to the physical touchings,

and he did not produce a written report of his investigation or inform her of the results.

Finally, when Hathaway continued to pursue her complaint because the harassment had

not stopped, management and EEO staff focused on her claims of discriminatory

retaliation, rather than inquiring further into her concerns about continuing sexual

harassment. The jury could have concluded on the basis of these facts that

management’s response to Hathaway’s repeated requests for assistance was

insufficiently thorough and not conducted in good faith.

In addition to conducting an investigation, the employer must take “prompt

remedial action reasonably calculated to end the harassment.” Davis, 981 F.2d at 343.

Runyon contends that management’s response to Hathaway’s complaints was sufficient

as a matter of law because it could not take disciplinary action on the basis of

uncorroborated allegations, and the only available remedy would have been to fire Norris

and Wynn. It is not a remedy for the employer to do nothing simply because the

coworker denies that the harassment occurred, see Fuller v. City of Oakland, 47 F.3d

1522, 1529 (9th Cir. 1995), and an employer may take remedial action even where a

complaint is uncorroborated, see Knabe v. Boury Corp., 114 F.3d 407, 409, 413 & n.11

(3d Cir. 1997). The jury could have found in this case that Hathaway’s complaint was

not corroborated only because management failed to conduct an adequate investigation

before concluding that it had no basis to take disciplinary action.

The district court’s finding that “management-level employees did implement

proper remedial action” is counter to the jury’s finding and could only be reached by

independently weighing the evidence presented to the jury, something not permitted in
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considering a motion for judgment as a matter of law. See Stephens v. Crown Equip.

Corp., 22 F.3d 832, 834 (8th Cir. 1994). Hathaway requested that management use

disciplinary action to stop the harassment or that Norris and Wynn be transferred to

areas where they would not come in contact with her. Other options would have

included scheduling the individuals on different shifts, putting a signed written warning

or reprimand in personnel files, or placing the offending employees on probation pending

any further complaints. See, e.g., Knabe, 114 F.3d at 413; Zirpel v. Toshiba Am. Info.

Sys., Inc., 111 F.3d 80, 81 (8th Cir. 1997); Intlekofer v. Turnage, 973 F.2d 773, 780 &

n.9 (9th Cir. 1992); Ellison v. Brady, 924 F.2d 872, 881-82 (9th Cir. 1991); Barrett v.

Omaha Nat'l Bank, 726 F.2d 424, 426 (8th Cir. 1984). Instead of keeping Norris and

Wynn away from Hathaway, postal management assigned Wynn to work more hours in

close proximity to Hathaway. Although Wacha claimed at trial that he had given oral

warnings to Norris and Wynn, the jury was free to disbelieve him since he failed to

create a written record that he had notified them of the disciplinary policy in cases of

sexual harassment. Wacha’s subsequent failure to reprimand Norris and Wynn for

cornering Hathaway in the small label room further supported the jury’s finding. Cf.

Baskerville, 50 F.3d at 432 (company’s response was sufficient as a matter of law where

it “took all reasonable steps to protect” plaintiff once she complained to human resources

department, including promptly investigating complaint, instructing offender to cease

offensive behavior immediately, placing him on probation, and withholding a salary

increase for several months). The jury chose to credit Hathaway’s evidence over that

of management and that was its right. See Gardner, 82 F.3d at 251.

Since Hathaway did not appeal from the adverse judgment on her retaliation claim

and Runyon did not challenge the amount of compensatory damages awarded, the only

question before this court on its de novo review is a simple one -- whether there was

sufficient evidence to support the verdict in Hathaway’s favor on her sexual harassment

claim. In determining whether a work environment is hostile or abusive the jury looks

at the totality of the circumstances, including “the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating
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 . . . ; and whether it unreasonably interferes with an employee’s work performance.”

Harris, 510 U.S. at 23. The jury was presented with evidence that Hathaway was

regularly subjected to offensive, sexually-oriented conduct by two coworkers for more

than eight months whenever she encountered Norris and Wynn, that the behavior began

after she rebuked Norris for touching and squeezing her buttocks, that she felt threatened

when they cornered her in the small label room and when they reported her for

mislabeling mail, and that her fear and anxiety about their next move led her to hide from

them and made it more difficult to do her job. While there was conflicting evidence

about the work environment, it was for the jury to resolve the conflicts, even if the

district court believed that it might have decided the issues differently had it been the

fact-finder. See In re Knickerbocker, 827 F.2d 281, 287 (8th Cir. 1987). The fact that

the jury ruled against Hathaway on her retaliation claim shows that it carefully reviewed

the evidence on each claim. There was no basis for the court to substitute its own

judgment for the jury findings, see Hane, 110 F.3d at 574; Stephens, 22 F.3d at 834,

particularly in light of the pivotal role of a jury in evaluating the hostility of a work

environment, see Harris, 510 U.S. at 24 (Scalia, J., concurring).

Viewing all the facts and reasonable inferences in the light most favorable to

Hathaway, there was sufficient evidence for the jury to conclude that the entire pattern

of hostile conduct arose from the physical touchings and Hathaway’s rejection of a

sexual overture, that this hostile conduct was based on sex, that it intimidated her and

made it more difficult for her to do her job, and that management did not take

appropriate remedial measures.

For these reasons the order granting judgment as a matter of law on the sexual

harassment claim is reversed and that portion of the judgment is vacated, and the case

is remanded for entry of judgment on the jury verdict.
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A true copy.

Attest:

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