United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3710

___________ Joe Earl Manning, Jr., * * Plaintiff/Appellant, * * Tomi Foust, Constance A. Pritchett, * * Plaintiffs, * * Gerald M. Elliott, * Appeals from the United States * District Court for the Plaintiff/Appellant, * Eastern District of Arkansas. * Cheryl V. Miller, Becky C. Smith, * Deborah D. Williams, * * Plaintiffs, * * v. * * Metropolitan Life Insurance * Company, Inc., * * Defendant/Appellee. *-2-

___________ No. 96-3711

___________ Joe Earl Manning, Jr., * * Plaintiff, * * Tomi Foust, Constance A. Pritchett, * * Plaintiffs/Appellees, * * Gerald M. Elliott, * * Plaintiff, * * Cheryl V. Miller, Becky C. Smith, * Deborah D. Williams, * * Plaintiffs/Appellees, * * v. * * Metropolitan Life Insurance * Company, Inc., * * Defendant/Appellant. *

___________ No. 96-3779

___________ Joe Earl Manning, Jr., * * Plaintiff, *-3- * Tomi Foust, Constance A. Pritchett, * * Plaintiffs/Appellants, * * Gerald M. Elliott, * * Plaintiff, * * Cheryl V. Miller, Becky C. Smith, * Deborah D. Williams, * * Plaintiffs/Appellants, * * v. * * Metropolitan Life Insurance * Company, Inc., * * Defendant/Appellee. *

___________ Submitted: September 8, 1997 Filed: October 10, 1997

___________ Before FAGG, LAY, and WOLLMAN, Circuit Judges.

___________ WOLLMAN, Circuit Judge.-4-

Plaintiffs Joe Earl Manning, Jr. and Gerald Elliott appeal from the district court’s grant of judgment as a matter of law (JAML) on their tort of outrage claims. Plaintiffs Deborah Williams, Cheryl Miller, Becky Smith, and Tomi Foust appeal from the-5-

district court’s grant of JAML on the ir claims of retaliation under Title VII. Defendant Metr opolitan Life Insurance Company (Metropolitan Life) cross-appeals from th e district court’s denial of JAML on the outrage cla ims of Williams, Miller, Smith, Foust, and Constance Pritchett. Metropolitan Life also cross-appeals from the denial of JAML on Pritchett’s retaliation claim. We affirm in part, reverse in part, and remand for a trial on the issue of damages only on Pritchett’s outrage claim.
I. This case has its genesis in the West Me mphis, Arkansas, office of Metropolitan Life, where the plaintiffs were employed prio r to its closing in May of 1994. The West Memphis office was not an agreeable place to work. Most of the conduct that resulted in the plaintiffs’ allegations was connected, at some level, to an adulterous affair tha t was alleged to have occurred between West Mem phis branch manager Denise Mitchell and account representative and executive trainee candidate Charles Craig.
The sexual relationship between Mitchell and Craig pervaded the offic e environment. Craig, whom Mitchell referred to as “like an assist ant manager,” and who described hi mself as the “dominant male” of the office, flaunted his intimate influence with Mitchell over his fellow employees. Crai g boasted openly and explicitly of sexual acts with Mitchell and of the preferential treatment that his relationship with Mitchell affordedhim. Craig described his own sexual prowess in graphic terms, detailing his performance of oral sex upon Mitchell, and d escribing and fondling his genitals in front of female employees on an almost daily b asis. He would often place his crotch in front of a seated female employee and demand that she address his penis, which he referred to as “Harvey.” He also engaged i n speculation about the sexual habits of others, such
as accus ing female account representatives of sleeping with their clients in order t o secure business.-6-

Additionally, Craig made crude, intimidating attempts to utili ze his influence with Mi tchell to solicit sexual favors from account representatives, who depended o n Mitchell’s support in order to satisfy Metropolitan Life’s strict production requirements, and from other female employees und er Mitchell’s supervision. Craig made a frequent practice of appro aching Smith, for example, to inform her that he would buy her lunch in ex change for oral sex. On one occasion, he told Pritchett, who was pregnant at the time, that he knew that she would like him to touch her breasts. Craig also informed at least one of the plaintiffs that if she would hav e sex with him he would intervene on her behalf with Mitchell and prevent what he said was her impending termination for low production.
Plain tiffs’ complaints to Mitchell protesting Craig’s conduct were initially me t with indifference and eventually returned with hostility and threats of termination

. Describing himself as a former CIA mercenary and assassin, Craig seems to have taken pleas ure from his veiled suggestions that he would have Pritchett and Smith, amon g othe rs, killed for complaining about Mitchell’s and Craig’s behavior. Mitchell an d Craig openly encouraged the perception that Craig had authority over the othe r employees, that his activities and behavior were not to be questioned, and that he was bein g groomed for a position in management. Plaintiffs’ complaints were similarl y dismiss ed without investigation by other Metropolitan Life supervisory personnel , including agency vice president Danny Gleason.
The plai ntiffs also testified to having been encouraged by their supervisors t o en gage in various illegal or unethical practices, including the writing of policies in a state for which the agent was not licensed, the forgery of policyholders’ signatures, and the targeting of elderly policyholders to convince them to use the accrued cash value in their exis ting policies with Metropolitan Life to purchase new and more substantia l policies, an illegal practice known as “churning.”T he district court held that the plaintiffs’ Title VII sexual harassment claim s 1 were ba rred by the applicable statute of limitations, a ruling that plaintiffs do no t challenge on appeal . The plaintiffs also appear to have alleged retaliation in violation of Title VII, 42 U.S.C. § 1981(a). Although Se ction 1981 has been held to encompass allegations of retaliatory conduct in a racial discrimination context, claims of gender or sex discrimination are not cognizable. See DeGraffenreid v. General Motors Assembly Div., St. Louis , 558 F.2d 480, 486 n.2 (8th Cir. 1977). -7- Eventua lly, persistent complaints by Pritchett, in particular, to the New York headquarters of Metropolitan Life produced an investigation. As a result, Mitchell was “reposit ioned,” as Gleason termed it, as an account representative in the Jonesbor o office of Metropolitan Life. Rather than being terminated, Craig was transferred to a similar office in Olive Branch, Mississippi (for whatever reason, Craig did not repor t for work at this new location, although it appears to be only some twenty-five to thirty miles distant from West Memphis). The plaintiffs ultim ately brought suit, alleging that Metropolitan Life’s response to their complaints constituted retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). The plaintiffs further alleged that by toleratin g various fo rms of sexual harassment and other clearly inappropriate behavior by it s supervis ors and employees, Metropolitan Life was guilty of the tort of outrage unde r Arkansas law. 1

At the close of the plaintiffs’ case, Metropolitan Life moved for JAML on al l claims of retaliation. The district court granted JAML on all but one of the retaliation claim s, holding that the requisite adverse employment action had not been shown

. Pritchett’s retaliation claim was all owed to proceed. Metropolitan Life then moved for JA MLon all claims of outrage. The district court denied the motion on the outrag e claims of Pritchett, Williams, Miller, Smith, and Foust, and reserved a ruling on th e claims of Manning and Elliott.-8-

After the conclusion of all evidence, Metropolitan renewed its motions for JAML on the plainti ffs’ outrage claims and on Pritchett’s retaliation claim. The district court again took under advisement the motion for JAML on the outrage claims of Manning and E lliott, and denied the other motions. After the jury returned a verdict for eac h plaintiff on the claims of outrage and for Pritchett on her retaliation claim, the district court granted JAML on the outrage claims of Manning and Elliott, and entere d judgment on the remaining claims.
II.
We conduct a de novo review o f a district court’s rulings on motions for JAML, applying the same standard employed by the district court. See Feltm ann v. Sieben , 108 F.3 d 970, 974 (8th Cir. 1997). We resolve all factual conflicts in favor of th e nonmoving party, giving that party the benefit of all reason able inferences and assuming as true all facts favoring that party which the evidence tended to prove. See Gathright v. St. Louis Teacher’s Credi t Union , 97 F.3d 266, 267 (8th Cir. 1996). We will affirm
a grant of JAML where the nonmoving party has presented insufficient evidence t o support a jury verdict in his favor. See Harvey v. Wal-Mart Stores, Inc. , 33 F.3d 969, 970 (8th Cir. 1994). Similarly, we will affirm the denial of a motion for JAML if a reasonable ju ry could differ as to the conclusions that could be drawn. See Gathright , 97 F.3d at 268. The tort of outrage under Arkansas law is essentially t hat of intentional infliction of emotional distress. See Hamaker v. Ivy , 51 F.3d 108 , 110 n.2 (8th Cir. 1995). Four elements mu st be proved to establish such a claim: (1) the actor intended to inflic t emotional distress or knew or should have known that emotio nal distress was the likely result of his conduct; (2) the conduct wa s extreme and outrageous, beyond all possible bounds of decency, a

nd utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expectedRemoved from its context in Tandy , this stateme nt might be misconstrued. The 2 Tandycourt proceeded to hold: “Whether Bone’s testimony was credible, whether he had intentionally lied to his employer, whether his e mployer was reasonable in denying him his medication, and wh ether, considering all the circumstances , the employer was guilty of outrageous con duct that proximately caused emotional distress to Bone were all questions for the jury .” Tandy , 678 S.W.2d at 317 (emphasis added). -9- to endure it. See Doe v. Wright , 82 F.3d 265, 269 (8th Cir. 1996) (citing Deitsch v. Tillery , 833 S.W.2d 760, 762 (Ark. 1992)). We have recognized that the Arkansas cour ts take a very narrow view of claims of outrage. See Freeman v. Bechtel Const. Co. , 87 F.3d 1029, 1031 (8th Cir. 1996). The tort i s clearly not intended to provide legal redress for every slight insult o r ind ignity that one must endure. See Hamaker , 51 F.3d at 110. Review of outrag e claims in e mployment situations has been particularly strict, as “an employer must be gi vena certain amount of latitude in dealing with employees.” Freeman , 87 F.3d a t 1031 (quoting Sterling v. Upjohn Healthcare Servs., Inc. , 772 S.W.2d 329, 330 (Ark. 1989)).
The Sup reme Court of Arkansas has consistently held the plaintiff to a hig h burden of proof in a to rt of outrage claim in an employment situation. In Hollomon v. Keadle , the court seemed to raise the threshold of proof even higher, however, b y holding that an employee who did not demonstrate that her employer was made aware that she was not a person of ordinary temperament or that she was peculiarl y susceptible to emotional distress by reason of some physical or mental condition di d
n o t establish a claim of outrage. 931 S.W.2d 413, 415 (Ark. 1996). In so doing, the court explicitly relied

on its statement in Tandy Corp. v. Bone , 678 S.W.2d 312 (Ark. 1984), that “[w]e emphasize tha t the notice to the employer of Bone’s condition is the only basis f

or a jury question of extreme outrage.” Hollomon , 931 S.W.2d at 41 5 (quoting Tandy , 678 S.W.2d at 317). 2-10-

Metropolitan Life argues that Hollomonstands for the proposition that a n em ployee in Arkansas can never state a claim of outrage against her employer unless she has first established that the emplo yer was placed on notice that the employee was not a person of ordinary temperament or was peculiarly susceptible to emotiona l distress. Such a holding, however, would not be in accord with the Restatemen t (S econd) of Torts § 46 (1965), upon which the Hollomoncourt relied, which regards such a showing as merely one factor that might be considered in an examination o f whether alleged conduct is of a sufficiently extreme and outrageous character t o support liability:
The extreme and out

rageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotiona l di stress, by reason of some physical or mental condition or peculiarity

. The conduct may become heartless, flagrant, and outrageous when th e actor proceeds in the face of such knowledge, where it would not be so if he did no t know. It must be emphasized again, however, that majo r outrage is essential to the tort; and the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feeling s hurt, is not enough.
Id. at cmt. f (emphasis added); see also Ingram v. Pirelli Cable Corp. , 74 7 S.W.2d 103, 106 (Ark. 1988). We have found no other Arkansas case, in the employment context or otherwise, which s uggests that a failure to demonstrate an alleged tortfeasor’s knowledge of a victim’s fragile temperament or peculiar susceptibility to emotional distress will, b y itself, defeat an outrage claim as a matter of law. To the contrary, in the Arkansa s Supreme Court’s most recent pronoun cement on outrage, only the traditional elements of the tort are set forth, and no reference is made to the purported requirement o f employer notice o f peculiar susceptibility. See Angle v. Alexander , 945 S.W.2d 933, 936-37 (Ark. 1997).-11-The jury made the following damage awards on these plaintiffs’ outrage claims: 3 Williams ($1,500 compensatory/2,000 punitive); Miller ($10,500/19,500); Smith ($2,500/ 4,500); and Foust ($5,000/8,500). Pritchett was awarded $50,000 i n compensatory and $225,000 in punitive damages as compensation for her outrage and retaliation claims. -12- We beli eve that the Arkansas courts will continue to adhere to the traditiona l elements of outrage and that notice of peculiar susceptibility to emotional distress will merely be one factor given special emphasis when an aggrieved employee asserts an outrage claim, as the Restatement of Torts and a reading of Arkansas case law prior to Hollom on suggest. See Wright , 82 F.3d at 269; Hamaker , 51 F.3d at 111; Crenshaw
v. Georgia-Pacific Corp. , 915 F. Supp. 93, 98 (W.D. Ark. 1995); Smith v. American Greetings Corp. , 80 4 S.W.2d 683, 686 (Ark. 1991). We do not believe, for example, t h at the Supreme Court of Arkansas would set aside a tort of outrage verdict in favor of an employee whose employer repeatedly fondled her and made intimidatin g demands for sex, merely because th ere was no showing that the employer was made aware that the emplo yee was peculiarly susceptible to the severe emotional distress that suc h outrage ous conduct is substantially certain to cause. See Hale v. Ladd , 826 S.W.2 d 244 (Ark. 1992). Rather, we are confident that the court would hold that the right to be fr ee from conduct of this sort extends to every person and not just to those known to possess temperaments that are peculiarly fragile.
We turn, then, to the substance of these appeals. We are in agreement with the district court that JAML was not appropriate on the outrage claims of Williams, Miller, Smith, Foust, and Pritchett. Each of these women was t argeted by Craig and subjected 3 to daily descriptions of his body parts, explicit updates on his sexual activity, and crude propo sitions made under the threat of adverse consequences or the promise of special favors. E ach also testified that Craig’s ongoing public affair with Mitchell rendere d their protests fruitless. Complaints by the plaintiffs to their regional supervisor s produced responses ranging from passivity to subtle hostility. All of these plaintiffs,Regarding plaintiffs’ allegations that they were encouraged by their superiors 4 to participa

te in illegal and unethical business practices such as forgery and churning, we note that such allegations alone are not sufficient to state a claim of outrage under Arkansas law. See Puckett v. Cook , 864 F.2d 619, 6 22 (8th Cir. 1989); Sterling Drug, Inc. v. Oxford , 743 S.W.2d 380, 382-83 (Ark. 1988). Such practices, however, could very well have contributed to the plaintiffs’ emotional distress. The jury awarded Manning $5,000 in compensatory and $25,000 in punitiv e 5 damages. Elliott was awarded $13,000 in compensatory and $25,000 in punitiv e damages. -13- mo reover, described the extreme distress and accompanying symptoms that resulte d from the actions o f Craig and Mitchell and the indifference of Metropolitan Life. See Angle , 945 S.W.2d at 937 (citing Prosser and Keeto n on Torts , § 12 (5th ed. 1984)) (if
enorm ity of offending conduct itself carries conviction there has been severe menta l di stress, physical harm not required to be shown). We believe that a reasonable jur y could find this conduct to have constituted the tort of outrage under Arkansas law. We 4 therefore affirm t

he district court’s denial of JAML on the outrage claims of Williams, Miller, Smith, Foust, and Pritchett.

We also agree with the district court that Manning and Elliott presente d insufficient evidence to suppor t the jury verdicts in their favor on their outrage claims. 5 Manning and E lliott were no more than occasional spectators to the sort of abuse b y Craig that the other plaintiffs were forced to endure. Manning’s chief complaint was that he felt pressured to permit Mitchell and Craig access to his house to conduct their adulterous affair, although he apparently never expressed to them his discomfort with this si tuation until he eventually and indirectly did so by turning down the furnace

. Elliott claims that a psychia tric vulnerability made his overhearing of sexual comments by Craig unbearable, although Craig apparently honored Elliott’s req uest to stop making such commen ts in Elliott’s presence. Exposure to abrasive profanity alone is no t sufficient to state an outrage cause of action. See Tandy , 678 S.W.2d at 315.-14-

Accordingly, we affirm the district court’s grant of JAML on Manning’s and Elliott’s outrage claims.
III.
As indicated above, the district court granted judgment as a matter of law on all but Pr itchett’s retaliation claim, holding that a subsequent adverse employment action had not been demonstrated by Williams, Miller, Smith, and Foust. To prevail on a retaliation claim brought under Title VII, 42 U. S.C. § 2000e-3(a), an empl oyee must show that (1) she filed a charge of discrimination; (2) the employer subsequently took adverse employment action against her; and (3) the adverse action was causal ly linked to the filing of the charge of discrimination. See Cram v. Lamson & Sessions, Co. , 49 F.3d 466, 474 (8th Cir. 1995). Once this prima facie showing is made, the burden shifts to the employer to articulate a legitimate, nondiscriminator y reas on for its actions. See Jackson v. Delta Special Sch. Dist. No. 2 , 86 F.3d 1489 , 1494 (8th Cir. 1996). If the employer m eets that burden, the presumption of retaliation disappears. See id.
The retal iation provision of 42 U.S.C. § 2000e-3(a) does not itself contai n language re quiring a materially adverse employment action in order to state a claim

. This requirement is inferred from the basic prohibition of employment discriminatio n set forth in 42 U.S.C. § 2000e-2(a)(1)-(2). See McDonnell v. Cisneros , 84 F.3d 256, 258-59 (7th Cir. 1996).
Al thoughactions short of termination may constitute an adverse employmen t action within the meaning of the statute, “not everything that makes an employe e unhappy is an actionable adverse action.” Montandon v. Farmland Indus., Inc. , 11 6 F.3d 355, 359 (8th Cir. 1997). We have held that a rea sonable jury could conclude that negative references to potential employers constituted sufficient adverse action to state-15-

a retaliation claim. Smith v. St. Louis Univ. , 109 F.3d 1261, 1266 (8th Cir. 1997). We have also recently held that the loss of status and prestige that accomp anied replacement of an income maintenance supervisor’s staff, when her salary and position remained the same, did not constitute a sufficient adverse employment action. Ledergerber v

. Stangler , No. 96-2395, 1997 WL545970 (8th Cir. Sept. 8, 1997); see also Harlston v. McDonnell Douglas Corp. , 37 F.3d 379, 382 (8th Cir. 1994) (changes in duties o r working conditions that cause no materially significant disadvantage insufficient t o establish adverse employment action).
Altho ugh the West Memphis office eventually closed as part of a large r dow nsizing at Metropolitan Life, Williams, Miller, Smith, and Foust do not allege the loss of their employment to have constituted retaliation for their complaints. Instead, these plaintiffs generally contend that the hostility and personal animus directed toward them by Metropolitan Life supervisors collectively constituted an adverse employment action. Williams, additionally, m ade vague allegations that her disability benefits were improperly handled as punishment for speaking out.
Abs ent evidence of some more tangible change in duties or working conditions that con stituted a material employment disadvantage, we must agree with the distric t court th at Williams, Miller, Smith, and Foust did not present evidence sufficient t o demonstrate any adverse employment action that constitutes the sort of ultimat e employment decision intended to be actionable under Title VII. See Ledergerber , 1997 WL545970 at *2; Montandon , 116 F.3d at 359. We therefore affir m the grant of JAML on their retaliation claims.
The distr ict court denied a motion for JAML on Pritchett’s retaliation claim

. Pritchett co ntended that she was retaliated against for her complaints in the form o f di srespect and ostracization by her supervisors and as a result of the untimeliness and the mannerin which the West Memphis office was closed. Although the hostilit y directed toward Pritchett was of greater intensity than that directed toward the other-16-

plaintiffs, we conclude that it did not rise to the level of an adverse employment action. See id. ; Ledergerber , 1997 WL545970 at *2. Regarding the manner in which the West Me mphis office was closed, Pritchett cannot establish that she was treated an y differently from any other Metropolitan employee who was affected. Pritchett wa s transfe rred to Jonesboro, the Metropolitan Life office closest in proximity to Wes t Memphis, and was eventually terminated for lack of production . Significantly, she does not alle ge that she was discharged in retaliation for her complaint. Accordingly, th e district court should have granted Metropolitan Life’s motion for JAML on Pritchett’s retaliation claim.
IV.
Altho ugh the jury was instructed to make separate findings of liability o n Pritchett’s claims of outrage and retaliation, the verdict form was not structured to allow for a separate award on each of these counts. As a result, the jury awarded a lump sum of $50,000 in compensatory and $225,000 in punitive damages. Because we are unable to determ ine how the jury intended to apportion the damages between the two claims, we must remand Pritchett’s outrage claim for determination of an appropriate damage award. The judg ment is affirmed in part and reversed in part, and the case is remanded to th e district court for trial on the issue of damages only on Pritchett’s outrage claim. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.