The Honorable David S. Doty , United States District Judge for the District of 1 Minnesota, sitting by designation.

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 97-4245

Rita Phillips, * * Appellant, * Appeal from the United * States District Court for v. * the Eastern District of Missouri * Taco Bell Corporation, * a California Corporation, * * Appellee. *

Submitted: June 12, 1998 Filed: October 1, 1998

Before WOLLMAN and MURPHY, Circuit Judges, and DOTY, District Judge. 1
DOTY, District Judge.

Rita Phillips appeals the district court’s order granting summary judgment i n favor of Taco Bell on her Title VII hostile environment and constructive discharge-2-

claims. Based on the Sup reme Court’s recent decisions in Burlington Industries, Inc. v. Eller th , ___ U.S. ___, 118 S. Ct. 2257, 141 L. Ed.2d 633, 1998 WL 336326 (June 26, 1998) and Faragher v. Boca Raton , ___ U.S. ___, 118 S. Ct. 2275, 141 L. ED.2d 662, 1998 WL 336322 (June 2 6, 1998), we reverse in part, affirm in part, and remand this case to the district court for further proceedings.

I. BACKGROUND

The fac ts underlying this employment discrimination case are not in dispute

. Appellant Rita Phillips was hired as a cashier by Appellee Taco Bell in March 1994. Beginning in March 1995, Duane Sonntag, a Taco Bell Store Manager and Phillips ’ immediate supervisor, began sexually harassing Phillips. Sonntag inappropriatel y touched Phillips or caused her to touch him on at least fiv e occasions from March 1995 to June 18, 1995.
On June 20, 1995, Phillips left a voice mail message for Scott Willi ams, the local Taco Bel l Market Manager, complaining about the unwanted sexual harassment b y Sonntag. Williams returned Phillips’ call the same day, and arranged a time for a meeting the

next day to discuss Phillips’ allegations. After Williams and Phillips met on June 21, Williams contacted Paul Ramse y, a Taco Bell Human Resources Manager in Chicago, to discuss Phi llips’ claims. On June 22, 1995, Williams informed Phillips that he would be out of town until July 5 and that he would conduct an investigatio n into her allegations against Sonntag upon his return. Williams told Phillips she could take a two-week paid vacation if she preferred not to work during the interim period; however, Phillips told Williams to commence his investigation upon his return and-3-

chose to continue

working during Williams’ absence. Williams received a voice mail message from Phillips on June 29, 1995, in which Phillips complained that “Dwayne didn’t get it ,” and upon returning Phillips’ call later that day Williams learned fro m Phillips that another incident with Sonntag had occurred and that Phillips was no longer comforta ble working at Taco Bell. Williams instructed Phillips to take a two-week , paid vacation.
Williams returned to St. Louis on July 5, 1995, but did not begin his inves tigation into P hillips’ allegations until July 10 because Sonntag was on vacation. On July 10, Willia ms interviewed Sonntag, and thereafter suspended him pending the outcome of the investigation. Williams also took statements from other Taco Bell employees and, after contacting Human Resources, terminated Sonntag on July 14, 1995.

Phill ips returned to the Taco Bell store to check her work schedule. Afte r learning t hat she had been scheduled for some evening hours, she alleges that a n Assistant Manager known only as “Jeff” spoke to her in a “nasty” tone of voice

. Plai ntiff admits that her conversation with Assistant Manager Jeff was void of sexual content. At that instant, Phillips decided to resign her employment with Taco Bell. She did so allegedly believing that she would be subjected to questioning and comments as to what had transpired between Sonntag and her and that she would be subjected t o undesirable wor

king conditions as a result of her complaining about Sonntag’s sexual harassment.

After re ceiving a right to sue letter from the E.E.O.C., Phillips filed he r complaint against Taco Bell in the United States District Court for the District ofPhillips conceded at the dist rict court level that she did not have a right to sue 2 letter from the Missouri Co mmission on Human Rights and the district court therefore determined that Taco Bell was entitled to summary judgment on all of Phillips’ claims brought under that statute. Phillips does not challenge this determination on appeal. Phillips’ complaint contains two counts, alleging both sexual discriminatio n 3 (Count I) an d sexual harassment (Count II). We agree with the district court that this case involves only a claim of sexual harassment, and will consider only thos e allegations. -4- Missouri on June 18, 1996, claiming she w as subjected to a hostile work environment 2 andwas constructively discharged in violation of Title VII of the Civil Rights Act of 1964. The district court granted summary judgment in favor of Taco Bell, finding that 3 Phill ips’ hostile environment sexual harassment claim failed because Taco Bell too k prompt remedial action reasonably calculated to end the harassment. In addition, the distr ict court concluded that Phillips’ constructive discharge claim failed becaus e Phillips di d not show that a reasonable person would find her working condition s intolerable and that she failed to give Taco Bell a reas onable opportunity to remedy the problems she perceived.

II. DISCUSSION
Phillips contends t

hat the district court erred in granting Taco Bell’s motion for summary judgment. We review a district court’s grant of summary judgment de novo, applying the same standard as the district court and affirming only when the evidence, viewed in the light most favorabl e to Phillips, reveals no genuine issue of material fact and that Taco Bell is entitled to judgment as a matter of law. Kinman v. Omaha Public-5-

School D ist. , 94 F.3d 463, 466 (8th Cir. 1996) ; Callanan v. Runyon , 75 F.3d 1293 , 1296 (8th Cir. 1996).

A. Hostile Environment
Phillips argued in her written materials and at oral argument that the district court improperly granted Taco Bell’s motion for summary judgment on her hostil e envi ronment

claim because Taco Bell had not taken prompt remedial action upo n learning of Sonntag’s sexual harassment and that Taco Bell knew or should hav e kno wn of Sonntag’s sexual harassment because Sonntag, as store manager, wa s Phillips’ direct supervisor.
In ruling on Taco Bell’s motion for summary judgment, the district court applied circuit precedent. On June 26, 1998, however, the Supreme Court announced a new rule to be applied in fed eral sexual harassment cases. In Burlington Industries, Inc. v. Ellerth , ___ U.S. ___, 118 S. Ct. 2257, 141 L. ED.2 d 633, 1998 WL 336326 (June 26, 1998) and Faragher v. Boca Raton , ___ U.S. ___, 118 S. Ct. 2275, 141 L. ED.2d 662, 1998 WL 336322 (June 26, 1998) the Court held that:

An employ er is subject to vicarious liability to a victimized employee for an actionable hostile environment created by asupervisor with immediate (or successively higher ) authority over the employee. When no tangib le employment action is taken, a defending employer may raise a n affirmative defense to liability or damages, subject to proof by a p reponderance of the evidence. . . . The defens e comprises two necessary elements: (a) that the employerTo establish a sexually hostile work environment in violation of Title VII, a 4 plaintiff has to esta

blish that (1) she belongs to a protected group; (2) she was subject to u nwelcome sexual harassment; (3) the harassment was based on sex; (4) th e harassmen t

affected a term, condition, or privilege of employment; and (5) th e employ er knew or should have known of the harassment and failed to take prope r remedial action. Todd v. Ortho Biotech, Inc. , 138 F.3d 733, 736 (8th Cir. 1998); Davis v. City of Sioux City , 115 F.3d 1365, 1368 n.5 (8th Cir. 1997) (citing Hall v. Gu s Const. C o. Inc. , 842 F.2d 1010, 1013 (8th Cir. 1988)); Callanan , 75 F.3d at 129 6 (quoting K opp v. Samaritan Health System, Inc. , 13 F.3d 264, 269 (8th Cir. 1993))

. Unde r this standard, the Eighth Circuit has found vicarious liability for an employe r when th e harasser was an owner, manager, or supervisor. See Kimzey v. Wal-Mart Stores, Inc. , 107 F.3d 568, 574 (8th Cir. 1997); Burns v. McGregor Elec. Indus., Inc. , 955 F.2d 559, 564 (8th Cir. 1992). -6- exer cised reasonable care to prevent and correct promptly any sexuall y harassing behavior, and (b) that the plaintiff employee un reasonably failed to take advant age of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Burlington Industries , 1998 WL 336326 at *15; Faragher , 1998 WL 336322 at *19.
In this case, there is no question that Sonntag was Phillips’ supervisor at the time the alleged harassment occurred. Based on Sonntag’s authority over Phill ips, Taco Bell is now subject to vicarious liability to Phillips if Sonntag’s actions crea ted an actionable hostile working environment. The district court’s discussion of plaintiff’s hostil e 4 environme nt

claim was limited to its finding that Taco Bell, when it learned o f Sonnta g’s conduct, took prompt remedial action reasonably calculated to end th e harassment. No findings were made on whether Sonntag’s actions were severe andW hile the district court also did not discuss the requirements that Phillip s 5 belong to a protected gr oup and be subject to unwelcome sexual harassment based on sex, it is evident that these elements have been satisfied. -7- pervasive enough to affect a term, condition, or privilege of Phillips’ employment. 5 Harassment is actionable if it is “‘sufficiently severe or pervasi ve to alter the conditions of the victim’s employment and create an abusive working environment.’” Harris v. ForkliftS ystems, Inc. , 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v

. Vinson , 477 U.S. 57, 67 (1986)). The conduct in question “mus t be sufficient to create a hostil e environment, both as it would be viewed objectively by a reasonable person and as it was actually viewed subjectively by the victim.” Howard v. Burns Bros., Inc. , 149 F.3d 835, ___, 1998 WL 388673 at *4 (8th Cir. July 14, 1998) (citing Harris , 510 U.S. at 21-22 ). Courts must examine the totality of the circumstances, including “the frequenc y of the discriminatory conduct; its severity; whether it is physicall y threatening or humili ating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris , 510 U.S. at 23.

The re cord here discloses that Sonntag inappropriately touched Phillips o r caused her to touch him on at least five occasions from March 1995 to June 18, 1995. Phillips found these incidents humiliating and Sonntag’s behavior made it difficult for Phillips to perform her job duties. Since there is sufficient evidence of imprope r conduct and Phillips’ subjective reaction, all that remains is the issue of whethe r Philli ps has shown that the offending conduct created an objectively hostil e environment. Under the facts of this case, this is a question best left to the fact-finder. Howard , 1998 WL 388673 at *5; Hathaway v. R unyon , 132 F.3d 1214, 1221 (8th Cir. 19 97)(discussing Justice Scalia’s concurring opinion in Harris which notes that sinceWe note that no affirmative defense is available to an employer when a 6 supervisor’s harassment culminates in a tangible e mployment action such as discharge, demoti on, or undesirable reassignment. Burlington Industries , 1998 WL 336326 a t *15; Far agher , 1998 WL 336322 at *19. Phillips argues in connection with he r const ructive discharge claim that she quit her job as a result of Sonntag’s harassment and her assignment to work some ho urs on a night shift. As we explain, infra , Phillips was not constructively discharged, nor did she suffer any other tangible detrimenta l emp loyment

action. The affirmative defense provided by Burlington Industries an d Faragher is therefore available to Taco Bell. -8- Congress se t no clear standard defining a hostile environment, it must be left t o “virtually unguided juries” to decide wheth er particular conduct is “egregious enough” to merit an award of damages).
Assuming Phillips can show an actionable hostile environment claim, Taco Bell may raise an affirmative defen se to either liability or damages. As just explained, the 6 two elements of this defense are that (1) Taco Bell exercised reason able care to prevent and correct promptly any sexually harassing behavior and (2) Phillips unreasonabl y failed to take advantage of any preventive or corrective oppo rtunities provided by Taco Bell or to avoid harm otherwise. See Alverio v. Sam’s Warehouse Club , ___ F

. Supp.2d ___, 1998 WL 354383 (N.D. Ill. July 2, 1998 ) (applying the Supreme Court’s new standard in a hostile environment sexual harassment case).
After examining the record, we conc lude that this case must be remanded to the dis trict court for further proceedings concerning the new affirmative defense. With regar d to whether Taco Bell exercised reasonable care to prevent any sexuall y harassing behavior, the Supreme Court noted that “[w]hile proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in-9-

every i nstance as a matter of law, the need for a stated policy suitable to th e employment circumstances may appropriately be ad dressed in any case when litigating the firs t element of the defense.” Burlington Industries , 1998 WL 336326 at *15 ; Faragher , 1998 WL 336322 at *19. During Phillips’ employment, Taco Bel l maintained a written sexual harassment policy, which was posted at all stores an d which a ll employees, including Phillips, reviewed and signed, indicating a n understanding of the policy’s contents. Whether this is sufficient to satisfy this portion of the affirmative defense is best left to the finder of fact.

As for Tac o Bell’s response to Phillips’ complaint, the facts are undisputed

. Phillips informed Williams of Sonntag’s harassment on June 20, 1995. Williams met with Phillips the next day, a nd on June 22, 1995, informed Phillips that she could take

a two-week paid vacation pending Williams’ investigation while he was out of tow n
on ot her business. Given this vacation option, Phillips voluntarily chose to continu e working. Upon learning from Phillips on June 29, 1995, that another incident ha d

occurre d, Williams instructed Phillips to take a two-week paid vacation. William s int erviewedSonntag on July 10, 1995, after Sonntag returned from a vacation , suspended Sonntag at that time, and terminated Sonntag on July 14, 1995, after taking st atements from other Taco Bell employees. We conclude that the district court is in the bes t position to analyze whether, upon learning of Sonntag’s conduct, Taco Bel l took pr ompt and appropriate remedial action reasonably calculated to end th e harassment.

The second element of the affirmative defense concerns whether Phillip s unreasonably failed to take advantage of any preventive or corrective opportunities-10-

provided b y Taco Bell or to otherwise avoid harm. Phillips alleges that Sonntag’ s harassment began in March 1995; however, Phillips did not complai n to Taco Bell until June 20, 1995, at which time she left a voic e mail message for Williams. Whether this delay in report

ing Sonntag’s conduct was reasonable, the effect this delay might have on Taco Bell’s liability and any damages afforded Phillips is a question best left to the finder of fact. This case must therefore be remanded to the district court for furthe r proceedings consistent with Burlington Industries , Faragher , and this opinion.

B. Constructive Discharge
To constitute constructive discharge, a plaintiff m ust show more than just a Title VII violation by her employer. Coffman v. Tracker Mari ne, L.P. , 141 F.3d 1241, 1247 (8th Cir. 1998). Constructive discharge occurs “when an employer del iberately renders the employee’s working con ditions intolerable and thus forces [her] to quit [her] job.” Johnson v. Bunny Bread Co. , 646 F.2d 1250, 1256 (8th Cir. 1981). See als o Bergstrom-E

k v. Best Oil Co. , 1998 WL 462203 at *5 (8th Cir. Aug. 11, 1998). The employer’s actions must have been intended to force the e mployee to quit, meaning the

em ployee’s resignation must be a reasonably foreseeable consequence of th e employer’s discriminatory actions. Allen v. Brid egestone/Firestone, Inc. , 81 F.3d 793, 796 (8th Cir. 1996) (citing Hukkanen v. International Union of Operating Engineers , 3 F.3d 281, 285 (8th Cir. 1993)). See also Tidwell v. Meyer’s Bakeries, Inc. , 93 F.3d 490 , 494 (8th Cir. 1996) (“To constitute a constructive discharge, the employer must deliber ately create intolerable working conditions with the intention of forcing th e employee to q uit and the employee must quit.”). In addition, to prove that she wa s constructively discharged, a plaintiff m ust demonstrate that a reasonable person would-11-

find t he working conditions intolerable. Allen , 81 F.3d at 796. Such intolerability of working c onditions is judged by an objective standard, not the plaintiff’s subjectiv e feelings. Id. Finally , to be reasonable “‘an employee has an obligation not to assume the worst and not to jump to conclusions too quickly. An employee who quits without giving [her] employer a reasonable chance to work out a problem has not bee n
con structively discharged.’” Summit v. S-B Power Tool , 121 F.3d 416, 421 (8th Cir. 1997) (quoting Tidwell , 93 F.3d at 494). See also Coffman , 141 F.3d at 1247.
Phillips argues that the district court erred in granting summary judg ment to Taco Bell on h er constructive discharge claim because Sonntag’s actions rendered he r working conditions so difficult and intolerable that a r easonable person would have felt compe lledto resign, and Phillips’ resignation was a reasonably foreseeabl e consequence of Sonntag’s conduct. In addition, she contends that her resignation was justified because even after Sonntag’s termination her working conditions remaine d hostile.

Th e evidence presented by Phillips does not support a finding of constructiv e disch arge. Phillips avers that upon her return to work after Sonntag’s discharg e Assistant Manager Jeff spoke to her in a “nasty” voice and scheduled her to work some evening hour s. This led to Phillips’ subjective belief that upon her return to work her co-workers would badger her about her sexual harassment complaint. H owever, during their brief conversation, Assistant Manager Jeff never said anything of a sexual nature,

nor did he mention the investigation or Phillips’ absence from work or any othe r objectionable topic. Even if Assistant Mana ger Jeff did speak in a “nasty” voice, such a one time occurrence does not rise to the level of an objectively intolerable working-12-

condition. In addition, being scheduled to work some evening hours is insufficient to establish constructive discharge. See Summit , 121 F.3d at 421 (tran sfer to another shift does not constitute constructive discharge); Tidwell , 93 F.3d at 496 (“Dissatisfaction with a wor k assignment is, as a matter of law, normally not so intolerable as to be a basis for constructive discharge.”). Phillips has also not challenged the district court’s finding that she did not give Taco Bell an opportunity to remedy any problems sh e perceived upon her return to work after the discharge of Sonntag.
Phillips repeatedly claimed during her deposition that she did not kn ow when she returned to the Taco Bell store to check her work schedule that Sonntag had been fired

on July 14, 19 95. See Deposition of Rita Phillips at 16 , 19, 20, 24, 73, 75, 77, 78 , 112-13, 139. While Phillips may not have been aware of Taco Bell’s action, she had

an obligation not to assume the worst and jump to conclusions too quickly. Summit , 121 F.3d at 4 21. If Phillips had simply asked whether she would continue to hav e contact with Sonntag she would have learned of his termination. Instead, she simply qui t without giving Taco Bell an opportunity to tell her of its response to her sexua l harassment complaint. So also with respect to Assistant Manager Jef f’s allegedly nasty tone of voice and Phillips’ new work hours, Phillips’ failure to give Taco Bell a fai r opportunity to demonstrate that it had remedied the situation that had given rise to her complaints viti ated the continued validity of her claim. Accordingly, her constructive discharge claim fails as a matter of law.

III. CONCLUSION-13-

In light of recent Supreme Court jurisprudence, Phillips’ hostile environmen t sexual harassment claim must be remanded to the district court for further proceedings

co nsistent with Burlington Industries and Faragher . Finding no error concernin g Phillips’ constructive discharge claim, however, we affirm as to that claim.
Affirmed in part, reversed in part, and remanded.
MURPHY, Circuit Judge, concurring in the result.

I agree with the result reached by the court, but not with the statements i n footnote 4 which rely on prior circuit cases to set out the current governing standards for a se xual harassment case. In Faragher v. City of Boca Raton , 118 S. Ct. at 2283- 2 2 84, the Supreme Court discussed in considerable detail the standards to be used in determining whether a plaintiff has established an actionable hos tile environment claim. Faragher and Burlington Industries, Inc. v. Ellerth are not just about vicarious liability andan employer’s affirmative defense; they also speak to the other requirements fo r such a cl aim. It is to these cases we must now look for guidance in considering a hostile environment case.
A true copy.

Attest:

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