*The HONORABLE DAVID S. DOTY, United States District

Judge for the District of Minnesota, sitting by

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 States

1

District Court for the Eastern District of Missouri.

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WOLLMAN, Circuit Judge.

National Super Markets, Inc. (National) appeals the district court's1

judgment in favor of Lisa Anne Varner on her claim brought under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the

Missouri Human Rights Act (MHRA), Mo. Rev. Stat. §§ 213.010 et seq. Varner

cross-appeals various rulings by the district court. We affirm.

I.

Over the course of several weeks in the spring of 1991, Robert

Edmiston, a 51-year-old produce worker at National, approached Varner, a

17-year-old floral worker, 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 her

breasts. Varner broke free and ran from the room. She then finished her

shift and went home. Varner called Chris Pilch, who was her fiance and

also a National employee, and related what had happened. Pilch immediately

called Curtis Mason, the store manager, and told him that Edmiston had

grabbed Varner's breasts. 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 possibly 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 November 22, 1991, Edmiston again approached Varner from behind,

put his arms through her arms, and grabbed her breasts. Edmiston then

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 had

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 had

happened. Pilch called Mason that evening and told him that Edmiston had

again grabbed Varner's breasts. Pilch testified that Mason's response was

the same this time as it had been after the first complaint, except this

time Mason added an additional dismissive comment: "That's just Bob being

himself." Mason again took no further action. Mason testified that he

told Pilch to tell Varner to call Roger Beckman in the Human Resources

Department.

Varner reported the incident to the police the next morning. At the

police officers' request, Varner telephoned Edmiston. The police taped the

conversation, in which Edmiston admitted sexually 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 was

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

swings, depression and crying episodes, and she became afraid to go to

work. She was diagnosed as suffering from post-traumatic stress syndrome

caused in part by the sexual comments and the first touching incident, but

mostly caused by the November 22, 1991 incident.

National's sexual harassment policy directs employees who believe

they have been subjected to sexual harassment to contact individuals in the

Human Resources Department or the Labor Relations Department. The policy

provides that a supervisor who has learned of an incident of sexual

harassment is to direct 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 employee

orientation handbook that Varner had agreed to familiarize herself with

during orientation.

Varner was a member of United Food & Commercial Workers' Union, Local

655, which has a collective bargaining agreement (CBA) with National.

Varner did not participate 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. National

removed the action to federal district court. A jury awarded Varner

$30,000 in actual damages. The district court denied National's motion for

judgment as a matter of law (JAML).

National argues on appeal that the district court erroneously denied

its motion for JAML because: (1) Varner's exclusive remedy is under the

Missouri workers' compensation law; (2) Varner failed to exhaust grievance

and arbitration remedies under the CBA; (3) Varner failed to invoke the

reporting procedures of National's sexual harassment policy; and (4) Varner

failed to timely file her administrative complaint, and thus her claims

concerning any pre-November 22, 1991 incidents were barred by the statute

of limitations. Varner cross-appeals, arguing that the district court

erred in formulating jury instructions, admitting and excluding certain

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 resolve

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

conclusions that could be drawn, and we will not weigh, evaluate, or

consider the credibility of the evidence. Id.

II.

National first argues that the district court lacked subject matter

jurisdiction over Varner's complaint because Varner's exclusive remedy was

under state workers' compensation law, as the damages she claimed were the

same as those provided under the Workers' Compensation statute. Mo. Rev.

Stat. §§ 287.010 et seq. The exclusivity provision of the Missouri

workers' compensation statute provides that:

The rights and remedies herein granted to an employee shall

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 recently rejected a similar contention, holding instead that the

exclusivity provision cannot preempt an employee's federally-created right

to recover damages under 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 have

found no such direction. 

Although Missouri courts have held that the exclusivity provision

bars common law tort actions that arise out of incidents covered by the

workers' compensation act statute, see, e.g., Hill v. John Chezik Imports,

797 S.W.2d 528, 531 (Mo. Ct. App. 1990), they have not extended the

exclusivity provision 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 to accomplish

the purposes thereof and any law inconsistent with any

provision of this chapter shall not apply.

As we said 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 been

recoverable under the Workers' Compensation Act. Karcher, slip op. at 12.

III.

National next argues that the district court erred in failing to

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 respect

to the MHRA, holding that exhaustion of other available administrative

remedies is not required before filing suit under the MHRA. Green v. City

of St. Louis, 870 S.W.2d 794, 796 (Mo. 1994) (en banc). Moreover, the

United States Supreme Court has held that the pursuit of a claim through

grievance and binding arbitration under a CBA does not preclude a civil

suit under Title VII, see Alexander v. Gardner-Denver 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 been

assigned plenary powers to secure compliance with Title VII." 415 U.S. at

47. We interpret this absolute grant of power to entail an absolute right

to adjudicate suits under Title VII as long as the jurisdictional

prerequisites dictated in Title VII itself are satisfied. These

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, 1326

n.3 (8th Cir. 1994). Thus, National's argument that such an exhaustion is

required before bringing suit is without merit, and the district court

therefore did not err in denying National's motion for JAML.

IV.

National next argues that the district court erred in denying its

motion for JAML because Varner failed to invoke the reporting procedures

of National's sexual harassment policy. We reject this claim. The

relevant question is whether National knew or should have known of the

harassment and failed to implement prompt and appropriate corrective

action. Staton v. Maries County, 868 F.2d 996, 998 (8th Cir. 1989). 

We conclude that Varner's reports of the incidents to Mason through

Pilch sufficiently put National on notice of the incidents. We look to

agency principles to determine whether an employer knew or should have

known of 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). Accordingly, 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 inadequate. Moreover, even

if Mason was not the proper person to conduct an investigation of the

incidents and take the appropriate corrective action, he had undisputed

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 Meritor

held that while a plaintiff's failure to invoke a company's written

procedure is relevant, it is not dispositive. 477 U.S. at 72. The Court

found that a policy that was not "calculated to encourage victims of

harassment to come forward" did not insulate the company from liability.

Id. at 73. National's policy, although certainly laudable in its

intentions and objectives, in effect required Varner's supervisor to remain

silent notwithstanding his knowledge of the incidents. We can understand

an employer's desire to utilize a chain-of-command structure, but a

procedure that does not require a supervisor who has knowledge of an

incident of sexual harassment to report that information to those who are

in a position to take appropriate action falls short of that which might

absolve an employer of liability.

V.

National argues that Varner failed to 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 Title

VII and the MHRA with the relevant enforcement agency 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 and

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 only approximate the date of

the first touching incident, it is unclear whether that incident fell

within the relevant period. 

Even if we 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 hostile

environment falls under the "continuing violation" exception to a statute

of limitations bar and that the limitations period runs from the "last

occurrence of discrimination." Gipson v. KAS Snacktime Co., 83 F.3d 225,

229 (8th Cir. 1996) (citations omitted). Under this theory, the entire

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 damages

under the Civil Rights Act of 1991, Varner must show that National engaged

in discrimination "with malice or reckless indifference to [her] federally

protected rights." 42 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 indifference 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 punitive

damages, Missouri law requires showing of conduct that would "shock the

conscience and cause outrage"); Turic v. Holland Hospitality, Inc., 85 F.3d

1211, 1216 (6th Cir. 1996) (duplicitous actions of employees insufficient

to support punitive damages award under Civil Rights Act of 1991);

Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir. 1994)

(a showing of more than intentional discrimination is required to recover

punitive damages under Civil Rights Act of 1991). Accordingly, the trial

court did not err in refusing to submit a punitive damages instruction to

the jury. 
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Given our holding on National's claims on appeal, we need not address

Varner's remaining claims on cross-appeal. 

The judgment is affirmed.

A true copy.

Attest:

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