United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 96-2302SI

____________ Cheri L. Bush, * * Appellant, * * On Appeal from the United v. * States District Court * for the Southern District * of Iowa. Marshalltown Medical and * Surgical Center, * * Appellee. *

___________ Submitted: June 11, 1997 Filed: September 9, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, BOWMAN an d MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
Cheri Bush

brought this case against her employer, Marshalltown Medical and Surgical Center, for sexual harassment an d retaliation. Her claims were based both on Title VI I of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988), and th e parallel Iowa statute, Iowa Code § 216.6 (1995).

The Titl e VII claims of sexual harassment and retaliation were tried to a jury

. The jury returned a verdict for the defendant, finding specially that the defendant didThe Hon. Charles R. Wolle, Chief Judge, United States District Court for the 1 Southern District of Iowa. A couple of comments may be in order with respect to the procedure followed 2 in this case. First, the fact that Iowa law provides that claims under that state's civilrights statute are to be tried to t he Court, rather than to a jury, is not relevant when the action is filed in federal court. The right to trial by jury in the federa l forum is governed by the Seventh Amendment, not state law. We have recently held that actions under Minnesota's civil-rights statute, when filed in a federal district court, are triable as of right to a jury, even though the Minnesota statute itself provide s that all actions brought pursuant to it must be tried to the Court. See Kampa v. White Consolidated Industries, Inc. , 115 F.3d 585, 586 (8th Cir. 1997). Secondly, even if the state-law claim had been properly triable to the Court, the jury's findings on the Title VII claim, involving as they did factual issues common to both claims, should have concluded the ma tter. See Sisco v. J.S. Alberici Construction Co. , 655 F.2d 146, 151 (8th Cir. 1981). However, the plaintiff does not claim on appeal that it was error not to try th e -2- not subject Bush to actionable sexual harassment, and that it did not retaliate against heron account of her opposition to sexual harassment. Bush's motions for new tria l and judgme nt notwithstanding the verdict were denied. Because Iowa law provide s that claims under the state civil-rights statute are to be tried to the court, rather than a jury, the District Court treated the jury's verdict as advisory only with respect to the 1 supple mentalstate-law claims. As to these claims, the Court made its own specifi c findings of fact and conclusions of law, reaching essentially the same conclusions as the jury. The Court found, among other things, that witnesses for the defense wer e more credible than the plaintiff.
On appeal, Bush does not argue that the denial of her motion notwit hstanding the verdict wa s error. That is, she does not argue that there was insufficient evidence, as a matter of law, to justify the conclusions that the jury reached on her Title VII claim. She does contend, however, th at it was an abuse of discretion for the District Court to deny her mo tion for a new trial. She also contends that the findings of the Distric t Court on the state-law claim are clearly erroneous. 2state-law claim to the jury, nor does the d efendant claim on appeal that it was error for

the DistrictCourt to make its own findings of fact on the state-law claim, instead o f treating the jury verdict as binding. Thus, we need not pursue these matters further. Bush claims she r

eported Bonnett's offensive behavior to Holm earlier in 1989 3 or 1990 and was told by Holm that she would talk to Bonnett. -3- We hold thatthe findings of fact made by the District Court are not clearl y erroneous, and that it did not abuse its discretion in denying the motion for a new trial on the Title VII claim. We therefore affirm the judgment in all respects.

I.

Bush has be en employed as a part-time paramedic by the defendant in it s ambulance depar

tment since 1989. She has also worked as a dispatcher. In her parttime position, Bush is scheduled to work one day a week. Bush claims that when she startedworking she found sexually suggestive cartoons posted in the office. She did not, however, complain about these cartoons to her super visor, Marsha Holm. Instead, most of Bush's complaints have inv olved a co-employee, Randall Bonnett, who is also a part-time paramedic, although on a different shift.

The defendant claims that Bush lodged her first complaints regardin g ina ppropriate behavior during a 1991 ambulance squad meeting. Holm called thi s 3 meeting after discovering a list of "dumb blonde jokes" in the department in order to discuss the inappropriateness of those jokes and to inform the employees of their right to complain about behavior they found offensive, so that t he hospital could remedy that be havior. During that meeting Bush told Holm that "a long time ago" Bonnett ha d cal ledher a filthy name, but Holm had done nothing about it. Holm could not recal l Bush's having reported the incident in the past but immedia tely discussed Bush's claims withBonnett. Bonnett admitted having a disagreement with Bush but denied calling her any names. Holm did not discipline Bonnett because she could not prove that he-4-

mad e the statement. Holm did warn Bonnett, however, that if such behavior ha d occurred, it was not to happen again.

Holmd id not receive any further complaints regarding inappropriate behavio r until eight months l ater, in April 1992, when Bush called Holm and complained about statements Bonnett allegedly made to a male co-worker . Bush also stated Bonnett was getting away with too many "things" and eventually alleged five specific incidents of miscon duct

by Bonnett. Holm had not previously heard of any of these incidents

. Holm investigated the matter and then met with her supervisor, Robert Downey, and the personnel manager, Bill Bumgarner, to discu ss what discipline they should impose. They decided to fire Bonnett. Bonnett challenged this decision and either denied the all egations or explained his actions to Bumgarner. Concerned that the hospital ha d disc hargedBonnett on the basis of inaccurate and unsubstantiated allegations , Bumgarner, Holm, and Downey decided the accusations warranted a two-da y suspension without pay instead. Shortly after this, Bush and her husband met with Holm to reiterate their concerns about what they considered sexual harassment.
Partly in response to this meeting and to the suspension of Bonnett, Hol m arranged for a sexual-harassment seminar to be given on May 12, 1992, by an assistant police chief who had experience in educating employees about sexual h arassment in the workplace. After this pre sentation, Bumgarner and Downey reviewed the defendant's
se xual-harassment

policy and reiterated the defendant's commitment to a wor k environme nt

free of sexual harassment and discrimination. Bush did not attend thi s seminar.
The next complaint lodged by Bush came in August 199 2 and concerned a report thatBonnett had forwarded to a doctor at the hospital. In this report there was a n account of a medication error made by Bush during an ambulance call. After speaking with Holm, Bush met with Downey and told him that Bonnett had forwarded the report to get her in trouble and that she wanted him fired. Downey investigated this incident-5-

and dec ided not to take any formal disciplinary action against Bonnett, because th e doctor was not concerned about the medication error, and Bush had not been harmed by Bonnett's action. Downey did, however, tell Holm to war n Bonnett that his behavior must improve and that any future substantiated acts of retaliation or sexual harassment would r esult in his immediate discharge. Downey also personally contacted Bonnett
an dtold him that his conduct must improve. Downey provided Bush with a writte n response documenting his investigation and explaining his evaluation of the situation.

In ea rly January 1993, Bush met with Downey and reported that Bonnett ha d used ina ppropriate language in a conversation with a female co-worker and agai n demanded that Bonnett be fired. Bush also claimed that all the women in the ambulance departmenthad low morale due to the hostile environment. Based on Bush's claims , Downey d ecided that he and Wendy Kadner, a supervisor in defendant's personne l department, would interview all of the women in the ambulance department. They also interviewed the men. Neither Downey nor Kadner mentioned Bush or Bonnett during these interviews, but their colleagues discussed them at lengt h and attributed the tension in the workp lace to their personality conflict. None of the employees complained o f being sub jected to a sexually hostile or abusive work environment. Downey, Kadner, andBumgarner reviewed the investigation results and concluded the hospital did no t have a sexually hostile work environment, and that morale of women employees wa s not low. Downey informed Bush, both personally and in writing, of the results of the investigation. Bush then filed this complaint against the defendant.

At the end of February 1993, Bush complained to Downey that Bonnett wa s reta liating against her because of her civil-rights suit. She also claimed, withou t substantiation, that she had received threatening notes at work and hara ssing phone calls athome. In response to her complaint, Downey distributed a memo to all ambulance and d ispatch personnel reminding them of the defendant's position concerning sexua l harassment and informing them that they could not retaliate against-6-

Bush. A week later the defendant enclosed with the employees' paychecks a copy of the hospi tal's sexual-harassment policy and a memo from the defendant's presiden t reiterating its position against discrimination and harassment.
Bush also complained of retaliatio n in the dispatch department. She complained to the dispatch supervisor that a female co-worker threw a chair at her. Afte r investigating the incident, the supervisor found that the co-worker had shoved a chair in Bush's dire ction. He told the co-worker that she needed to do a better job o f controllin g her temper. Bush requested a leave of absence from the dispatc h department, which was granted. The supervisor wrote three letters to Bush requesting specific information regarding the alleged retaliation. Bush did not respond to his first two letters, s o he spoke with her personally in March 1995. The only incident Bus h mentioned was the previously reported chair incident.
Finally , Bush claimed that other employees retaliated against her by no t scheduling her for as many hours as they had before she filed su it. Holm and Bush's coworkers denied these all egations, and stated instead that they had tried to schedule her on several occasions, but she was either unavailable or unwilling to work.

II.

A dist rict court's findings cannot be set aside on appeal unless they are clearl y erroneous. Fed. R. Civ. P. 5 2(a); Craft v. Metromedia, Inc. , 766 F.2d 1205, 1211 (8th Cir. 1985), cert. denied , 475 U.S. 1058 (1986). A finding is clea rly erroneous when our revie w of the record leaves us with the definite and firm conviction that a mistake has bee n made. Anderson v. City of Bessemer City , 470 U.S. 564, 573 (1985); Craft v

. Metromedia, Inc. , 766 F.2d at 1211-12. The party seeking to have the fin dings set aside bears theburden of showing clear error. Griffin v. City of Omaha , 785 F.2d 620, 626 (8th Cir. 1986). Finally, when reviewing for clear error we must view the evidence in the light most favorable to the party who prevailed at trial. Id.Bush ar gues that Chief Judge Wolle abused his discretion by failing to admi t 4 certain cartoons into evidenc e. We do not agree. Chief Judge Wolle refused to admit only those cartoons that could not be identified by date. Of those that could b e identified by date, he admitted every joke or cartoon Bush claimed to have seen in the workplace. He also admitted some cartoons that pre-dated Bush's employment. We believe that the 22 cartoons received into evidence provided the Court and jury with ampleevidence to decide whether a sexually hostile environment existed in th e defendant's workplace. -7- In this case both the District Judge and the j ury found for defendant after hearing
seven days of testimony from over 34 witnesses and after reviewing nearly 20 0 exhibits. Most of the testimony Bush gave regarding the incidents of s exual harassment

4 were directly contradicted by Bonnett and her other co-workers. Both the jury and the DistrictJudge resolved these discrepancies in the defendant's favor. The credibility det erminations of the district judge must be given great deference and cannot b e
rev ersedabsent compelling evidence to the contrary. Hornsby v. St. Loui s Southwestern Ry. Co. , 963 F.2d 1130, 1133 (8th Cir.), cert. denied , 506 U.S. 95 5 (1992). A finding based on t he trial court's decision to believe one of two or more live witnesses can virtually never be clear error. For similar reasons, it was not an abuse of discretion to deny the motion for a new trial on the federal claims.
The judgment is affirmed.
A true copy.

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