### *The H ONORABLE DAVID S. DOTY, United States Distric t

Ju dge for the District of Minnesota, sitting b y designation. ___________ No. 95-3611

___________ Lisa Anne Varner, Rony Varner, * Peggy Varner, * * Plaintiffs/Appellees, * * v. * * National Super Markets, Inc., * * Defendant/Appellant. *

___________ Appeals from the United States No. 95-3839 District Court for the

___________ Eastern District of Missouri. Lisa Anne Varner, * * Plaintiff/Appellant, * * Rony Varner, Peggy Varner, * * Plaintiffs, * * v. * * National Super Markets, Inc., * * Defendant/Appellee. *

___________ Submitted: June 10, 1996 Filed: September 9, 1996

___________ Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and DOTY, District Judge.

*

___________

### The Honorable Jean C. Hamilton, Chief Judge, United State s 1 

### District Court for the Eastern District of Missouri. -2- WOLLMAN, Circuit Judge.
National Super Markets, Inc. (National) appeals the district court's 1 judgment in favor of Lisa Anne Varner on her cla im brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and th e Missouri Human Rights Act (MHRA), Mo. Rev. Stat. §§ 213.010 et seq. Varne r cross-appeals various rulings by the district court. We affirm.

I.

Over the course of several weeks in the spring of 1991, Rober t Edmiston, a 51-year-old produce worker at National, approached Varner, a 17-year-old floral wo rker, and made graphic sexual comments and displayed pornography to her. In July or August of 1991, Edmiston approached Varner from behind, reached his arms under Varner's arms, and squeezed he r breasts. Varner brok e free and ran from the room. She then finished her shift a nd went home. Varner called Chris Pilch, who was her fiance an d also a National employee, and related what had happened. Pilch immediatel y calle d Curtis Mason, the store manager, and told him that Edmiston ha d grabbed Varner's brea sts. According to Pilch's testimony, Mason told him that he could not do anything unless Varner reported the incident to him, and then he could pos sibly say something to Edmiston, but that would make the situation worse. According to Pilch, Mason further advised him that "he could just let it alone and maybe Bob would just leave her alone and forget about it." Mason did not report the incident to anyone.

On Novemb er 22, 1991, Edmiston again approached Varner from behind, put his arms through her arms, and grabbed her breasts. Edmiston the n grabbed Varner's thumbs and forced her hand behind

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her back into his crotch area. Varner again broke free and ran from the
room -- on her way out telling co-worker Patrick McCorkle that Edmiston ha d grabbed her. Varner finished her shift and went home, where she told her mother what had happened and then called Pilch and told him what ha d happened. Pilch call ed Mason that evening and told him that Edmiston had again grabbed Varner's breasts. Pilch testifiedthat Mason's response was the same this time as it had been after the first complaint, except this time Mason added an additional dismissive commen t: "That's just Bob being himself." Mason again took no further action. Mason testified that h e told Pilch to tell Varner to call Roger Beckman in the Human Resource s Department.
Varner reported the incident to the police the next morning. At the police officers' request, Varner telephoned Edmiston. The police taped th e conversation, in which Edmiston admitted sexuall y assaulting Varner on two occasions. The police went to National's store and arrested Edmiston
. Mason told the police that he was aware of the incidents but that there wa s nothing he could do unless Varner told him about it herself. Mason then contacted his district manager about the incident.
Although Varner continued to work, she suffered from nightmares , mood swing s, depression and crying episodes, and she became afraid to go t o work. She was diagno sed as suffering from post-traumatic stress syndrome caused in part by the sexual comments and the fi rst touching incident, but mostly caused by the November 22, 1991 incident.

Nat ional's sexual harassment policy directs employees who believ e they have been subjected to sexual harassment to contact individuals in th e Human Resources Depar tment or the Labor Relations Department. The policy provides that a supervisor who has learned of an incident of sexua l harassment is to dire ct the employee to contact one of those individuals; the supervisor is not

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to take any personal action. The policy was included in the employe e orient ationhandbook that Varner had agreed to familiarize herself wit h during orientation.
Varner was a member of United Food & Commercial Workers' Union, Local 655, w hich has a collective bargaining agreement (CBA) with National
. Varner did not partic ipate in the grievance and arbitration procedures in place under the CBA.
Varner filed a complaint with the Missouri Commission on Human Rights (MCHR) and the Equal Employment Opportunity Commission (EEOC) on May 18, 1992. She then filed her complaint in Missouri state court. Nationa l
remo ved the action to federal district court. A jury awarded Varne r $30,000 in actual damages. The district court denied National's motion fo r judgment as a matter of law (JAML).
National argues on appeal that the d istrict court erroneously denied its motion for JAML because: (1) Varner's exclusive remedy is under the Missouri workers' compensation law; (2) Varner f ailed to exhaust grievance and arbitration remedies under the CBA; (3) Varner failed to invoke th e reporting procedures of National's sexual harassment policy; and (4) Varne r fai led to timely file her administrative complaint, and thus her claim s concerning any pre-No vember 22, 1991 incidents were barred by the statute of lim itations. Varner cross-appeals, arguing that the district cour t erred in formulating jury instructions, admitting and excluding certai n evidence, and in failing to submit her punitive damages claim to the jury.

We review a district court's denial of a motion for JAML de novo , applying the same standard used by that court. Triton Corp. v. Hardrives, Inc. , 85 F.3d 343, 345 (8th Cir. 1996). We must view all facts and resolv e any conflicts in favor of Varner, giving her the benefit of all reasonable inferences. Id. We will affirm the

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denial of the motion for JAML if a reasonable jury could differ as to the
conc lusions that could be drawn, and we will not weigh, evaluate, o r consider the credibility of the evidence. Id.

II.

National first argues that the district court lacked subject matter jurisdiction over Varner's complaint because Var ner's exclusive remedy was under state workers' compensation law, as the damages she claimed were the same as those provide d under the Workers' Compensation statute. Mo. Rev. Stat. §§ 287.010 et seq. The exclusivity provision of the Missour i workers' compensation statute provides that:

The rights and remedies herein granted to an employee shal l exclude all other rights and remedies of the employee . . . at common law or otherwise, on account of such accidental injury as death, except such rights and remedies as are not provided for by this chapter. Mo. Rev. Stat. § 287.120.2.

We recent ly rejected a similar contention, holding instead that the exclusivity provision cannot preempt an employee 's federally-created right to recover damages un der Title VII. Karcher v. Emerson Electric Co. , No. 95-3427, slip op. at 12 (8th Cir. Sept. 4, 1996). Moreover, as we did in Karcher , we decline to read the provision to bar the recovery of damages under the MHRA absent clear direction from the Missouri courts, and we hav e found no such direction.

Altho ughMissouri courts have held that the exclusivity provisio n bars comm on law tort actions that arise out of incidents covered by th e workers' compensation act statute, see , e.g. , Hi ll v. John Chezik Imports , 797 S.W.2 d 528, 531 (Mo. Ct. App. 1990), they have not extended th e exclusivityprovision to bar suits under the MHRA. Indeed, the language of the MHRA appears to preclude any

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such finding. The statute states, in relevant part, that:
The provisions of this chapter shall be construed t o accomplish the purposes thereof and any law inconsistent with an y provision of this chapter shall not apply.

As we sai d in Karcher , we interpret broadly the remedial purpose of the MHRA, and we thus hold that an award of damages under the statute is not foreclosed by the possibility that such damages would have bee n recoverable under the Workers' Compensation Act. Karcher , slip op. at 12.

III.

Na tional next argues that the district court erred in failing t o grant its motion for JAML because Varner failed to exhaust grievance and arbitration remedies under the CBA.

The Missouri Supreme Court has resolved this question with respec t to the MHRA, holding that exhaustion of other available administrativ e remedies is not required before filing suit unde r the MHRA. Green v. City of St. L ouis , 870 S.W.2d 794, 796 (Mo. 1994) (en banc). Moreover, th e United States Supreme Court has held that the pursuit of a claim through grievance and binding arbitration under a CBA does not preclude a civi l suit under Title VII, see Alexander v. Gardner-D enver Co. , 415 U.S. 36, 49 (1974), and we believe the same reasoning applies to a plaintiff who has chosen not to participate in the grievance procedure.

In Alexander , the Court stated that, "federal courts have bee n assigned plenary powers to secure compliance wit h Title VII." 415 U.S. at 47. We interpret this absolute grant of power t o entail an absolute right to ad judicate suits under Title VII as long as the jurisdictiona l prereq uisites dictated in Title VII itself are satisfied. Thes e prerequisites do not include an exhaustion of

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grievance procedures under a CBA. See 42 U.S.C. § 2000e-5(b),(e) and (f). See also Stacks v. Southwestern Bell Yellow Pages, Inc. , 27 F.3d 1316, 132 6 n.3 (8th Cir. 1994). Thus, National's argument that such an exhaustion is required before bringing suit is without merit, and the district cour t therefore did not err in denying National's motion for JAML.

IV.

Natio nal next argues that the district court erred in denying it s motion for JAML because Varner failed to invoke the reporting procedures of Nation al's sexual harassment policy. We reject this claim. Th e relev ant question is whether National knew or should have known of th e ha rassment and failed to implement prompt and appropriate correctiv e action. Staton v. Maries County , 868 F.2d 996, 998 (8th Cir. 1989).

We conclu de that Varner's reports of the incidents to Mason through Pilch suf ficiently put National on notice of the incidents. We look t o agencyprinciples to determine whether an employer knew or should hav e knownof the harassment. Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 72 (1986). Indeed, Title VII defines employer to include any "agent" of the employer. 42 U.S.C. § 2000e(b). Accordingl y, Pilch's notification to Mason while Mason was acting in his supervisory capacity was sufficient to constitute notice to National. We find no significance in the fact that it was Varner's fiance who notified Mason, rather than Varner herself.

Moreover, we conclude that once National was notified, it failed to take reasonable remedial action. Sufficient evidence supports a finding that Mason's response to Pilch's complaint was i nadequate. Moreover, even if Mason was not the proper person to conduct an investigation of th e incide nts and take the appropriate corrective action, he had undispute d supervisory authority and could have informed the appropriate individuals responsible for

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taking action.
Further, we conclude that National's sexual harassment policy is not alone sufficient to shield it from liability. The Supreme Court in Merito r held that while a plaintiff's failure to invoke a company's writte n procedure is relevant , it is not dispositive. 477 U.S. at 72. The Court foun d that a policy that was not "calculated to encourage victims o f harassment to come forward" did not insulate the company from liability. Id. a t 73. National's policy, although certainly laudable in it s intentions and objectives, in effect required Varner's supervisor to remai n silent notwithstandin g his knowledge of the incidents. We can understand
an emp loyer's desire to utilize a chain-of-command structure, but a proc edure that does not require a supervisor who has knowledge of a n incident of sexual ha rassment to report that information to those who are ina position to take appropriate action falls short of that which might absolve an employer of liability.

V.
National argues that Varner failed t o timely file her administrative complaint with respect to all except the November 22, 1991, incidents of sexual harassment. A plaintiff is required to file a complaint under Titl e VII and the MHRA with the relevant enforcement a gency within three hundred days of the discriminatory act. See 42 U.S.C. § 2000e-5(e); Mo. Rev. Stat
. §§ 213.075, 213.111. Varner filed a concurrent complaint with the MCHR an d the EEOC on May 18, 1992. The November 22, 1991, incident clearly falls within the limitations period. The earlier incidents of verbal harassment , however, do not. Because the witnesses could on ly approximate the date of the fir st touching incident, it is unclear whether that incident fel l within the relevant period.

Even if w e assume that the November 22 assault is the only incident that fell within the statute of limitations, National's

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argument still must fail. We have found that evidence of a hostil e environment falls und er the "continuing violation" exception to a statute of li mitations bar and that the limitations period runs from the "las t occurrence of discrim ination." Gipson v. KAS Snacktime Co. , 83 F.3d 225, 229 (8th Cir. 1996) (citations omitted). Under this theory, the entir e course of conduct creating the hostile environment suffered by Varner is actionable.

VI.

Varner cross-appeals the district court's decision not to submit a punitive damages instruction to the jury. To collect punitive damage s under the Civil Rights Act of 1991, Varner must show that National engaged in discrimination "with malice or reckless indif ference to [her] federally protected rights." 4 2 U.S.C. § 1981a(b)(1). To collect punitive damages under the MHRA, Varner must show that National's conduct was "outrageous because of its evil motive or reckless indiffere nce to [Varner's rights]." Kientzy v. McDonnell Douglas Corp. , 990 F.2d 1051, 1062 (8th Cir. 1993).
Varner made no showing that National acted with malice or deliberate indifference or that its conduct was outrageous. See Nelson v. Boatmen's Bancshares, Inc. , 26 F.3d 796, 804 (8th Cir. 1994) (to recover punitiv e dam ages, Missouri law requires showing of conduct that would "shock th e conscience and cause outrage"); Turic v. Holland Hospitality, Inc. , 85 F.3 d 1211, 1216 (6th Cir. 1996) (duplicitous actions of employees insufficient to suppo rt punitive damages award under Civil Rights Act of 1991) ; Pandazides v. Virgini a Bd. of Educ. , 13 F.3d 823, 830 n.9 (4th Cir. 1994) (a showing of more th an intentional discrimination is required to recover punitive damages unde r Civil Rights Act of 1991). Accordingly, the trial court did not err in refusing to submit a punitive damages instruction to the jury.

### -10- Given our holding on National's claims on appeal, we need not a ddress Varner's remaining claims on cross-appeal.
The judgment is affirmed.

A true copy.

Attest:

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