* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 11 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TONYA WALKER, an individual,

Plaintiff-Appellant, No. 02-5097

v. (D.C. No. 97-CV-1042-EA) UNITED PARCEL SERVICE OF AMERICA, INC., sued as: United Parcel Service, Inc.,

Defendant-Appellee. (N.D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and HARTZ , Circuit Judges.

Plaintiff Tonya Walker appeals the district court’s grant of summary judgment in favor of her former employer, DefendantUnited Parcel Service, Inc. (UPS), on her claims for (1) sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and (2) retaliation under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601- 2654. Plaintiff also appeals the district court’s award of costs to UPS, arguing-2-

that the cost award should be reversed along with t he grant of summary judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.
I. BACKGROUND Plaintiff began working for UPS as a full-time pack age driver in February 1990. She claims that during the course of her emp loyment, she was subjected to a litany of offensive gender-related jokes, comment s, and conduct by her supervisors and coworkers that created a sexually h ostile working environment. Plaintiff complained about some of this behavior to her union steward, although she did not ask him to file a grievance on her beha lf, and he did not do so. She asserts that she also complained generally about se xual harassment to two different supervisors in 1997, but admits that she did not provide them with any specifics. Apparently no action was taken by UPS w ith respect to the alleged harassment. On August 25, 1997, Plaintiff filed a charge of sexdiscrimination with the Equal Employment Opportunity Commission (EEOC), cit ing sexist remarks allegedly made by her supervisor and asserting thatshe was disciplined more frequently than her male coworkers. After obtainin g a right-to-sue letter from the EEOC, she sued UPS on November 6, 1997, alleging, among other things, sexual harassment and retaliation under Title VII.-3-

On December 24, 1997, UPS terminated Plaintiff’s employment, claiming excessive absenteeism and job abandonment. Plainti ff, who was pregnant at the time, filed a grievance with her union asserting th at the absences were pregnancyrelated, and arguing that the termination violated her rights under the FMLA. It appears that Plaintiff continued working at UPS while the grievance was being processed. On January 12, 1998, she began a seven-month pregnancyrelated leave of absence from work. While Plaintif f was on pregnancy leave, UPS and the union settled her grievance by reducing the termination to a five-day suspension, which ran concurrently with Plaintiff’s leave of absence. It is undisputed that Plaintiff lost no pay as a result o f the “termination” and subsequent suspension. Nevertheless, in March 1998 Plaintiff amended her pending Title VII sexual-harassment and retaliation complaint to add a claim alleging that the suspension violated her rights un der the FMLA. Plaintiff returned to UPS from her leave of absence on August 17, 1998. She claims that upon her return she was subjected t o more harassment and “near daily disciplinings” for two weeks, which did not s top until she gave UPS a twoweek notice of her intent to quit. On September 18 , 1998, Plaintiff resigned from UPS and began working for Federal Express. Plainti ff ultimately filed a separate lawsuit against UPS, alleging that she was construc tively discharged in retaliation for exercising her rights under the FMLA and Title VII.-4-

In July 1998 UPS moved for summary judgment on Plai ntiff’s Title VII and FMLA claims. (The constructive discharge claims we re not at issue in the motion.) The district court granted the motion, fi nding that it lacked jurisdiction over the Title VII claims because Plaintiff had fai led to exhaust her administrative remedies, and ruling that the FMLA c laim failed because Plaintiff suffered no damages as a result of the five-day sus pension. On appeal we affirmed the district court’s FMLA ruling but rever sed its Title VII ruling. See Walker v. United Parcel Service, Inc. , 240 F.3d 1268, 1271-79 (10th Cir. 2001) ( Walker I

). We remanded the Title VII claims for further pr oceedings on the merits. See id. at 1279. Following our decision in Walker I, the district court consolidated the remanded Title VII sexual-harassment and retaliatio n claims with Plaintiff’s thenpending constructive discharge claims. UPS subsequ ently moved for summary judgment on the consolidated claims. The district court once again granted summary judgment, finding that (1) Plaintiff’s sexu al harassment claim failed because Plaintiff was not subjected to a sexually h ostile work environment, and (2) Plaintiff’s Title VII and FMLA retaliation clai ms failed because Plaintiff was not constructively discharged. The court also awar ded costs to UPS. Plaintiff now appeals those rulings.-5-

II. STANDARD OF REVIEW “We review a decision granting summary judgment de novo, using the same legal standard applicable in the district court.” Mesa v. White , 197 F.3d 1041, 1043 (10th Cir. 1999). Summary judgment is appropr iate only “if the pleadings, depositions, answers to interrogatories, and admiss ions on file, together with the affidavits, if any, show that there is no genuine i ssue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The moving party is entitled to summary judgment ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.’” Penry v. Fed. Home Loan Bank of Topeka , 155 F.3d 1257, 1261 (10th Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (brackets in Penry )). “When applying this standard, the court must examine the factual record and reasonable infe rences drawn therefrom in the light most favorable to the non-moving party.” Id.
III. DISCUSSION A. Sexual harassment
1. Hostile work environment Plaintiff argues that the district court erred in f ailing to consider much of her evidence of sexual harassment, and in finding a s a matter of law that she was not subjected to an objectively hostile work enviro nment at UPS.-6-

“For a hostile environment claim to survive a summa ry judgment motion, a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and ins ult, that is sufficiently severe or pervasive to alter the conditions of the victim’s e mployment and create an abusive working environment.” Penry , 155 F.3d at 1261 (internal quotation marks omitted). “The plaintiff must produce evidence that she was t he object of harassment because of her gender.” Id. “In deciding whether or not a hostile environment existed, it is necessary to look to all the circumstances involved in the situation. These may include ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or h umiliating, or a mere offensive utterance; and whether it unreasonably interferes w ith an employee’s work performance,’” Nieto v. Kapoor , 268 F.3d 1208, 1218 (10th Cir. 2001) (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 23 (1993)), but “no single factor is required.” Harris , 510 U.S. at 23. “While the plaintiff must make ashowing that the environment was both objectively and subjective ly hostile, she need not demonstrate psychological harm, nor is she requiredto show that her work suffered as a result of the harassment.” Penry , 155 F.3d at 1261. Plaintiff points to a number of incidents that alle gedly occurred during the course of her employment at UPS and argues that tho se incidents were sufficiently severe or pervasive to create an actio nable hostile work environment.-7-

The district court considered only six of the incid ents in ruling on UPS’s summary-judgment motion, despite the fact that UPS in its supporting brief assumed (but did not admit) that all the alleged in cidents occurred, citing to Plaintiff’s sworn interrogatory responses as the so urce of the allegations. UPS’s position was that even if every incident occurred, there was no hostile work environment as a matter of law. Apparently the cou rt considered only six of the incidents because Plaintiff failed to point to addi tional evidence in her summaryjudgment response that the remaining incidents occu rred. We agree with Plaintiff that this was error; Plaintiff was not required to come forward with additional evidence to support allegations that UPS did not di spute, when the supporting evidence was already cited in UPS’s summary-judgment brief. On appeal UPS does not defend the district court’s consideration of only six of the alleged incidents, and does not argue that our review shoul d be confined to only those six incidents. We disagree, however, with Plaintiff’s contention t hat the district court erred when it did not consider additional incidents that allegedly occurred following Plaintiff’s return to UPS from pregnancy leave in August 1998. As a review of the summary-judgment pleadings makes clear, Plaintiff did not argue in district court that those incidents were relevant t o her sexual harassment claim; accordingly, we will not consider them on appeal. See Farmers Ins. Co., Inc. v.-8-

Hubbard, 869 F.2d 565, 570 (10th Cir. 1989) (“This court w ill generally not address issues that were not considered and ruled upon by the district court.”). We therefore consider the following alleged conductidentified in Plaintiff’s opening brief on appeal in reviewing th e propriety of summary judgment here: 1. In October 1990 a male supervisor “leered” at Pla intiff while she was wearing her street clothes and told her, “‘[D]amn, you sure look a hell of a lot nicer in that than in those browns.’” 2. While she was driving with male supervisors they would make “occasional comments about certain sexual features of other women,” i.e. , the supervisor would refer to a woman’s “big tits .” (No date is provided.) 3. A male supervisor told Plaintiff that the job was “‘just too hard on a woman,’ and suggested if her husband could not care for her she might find a ‘sugar daddy.’” (No date is provided. ) 4. A male coworker “motion[ed] with his hands as if measuring [Plaintiff’s] hips.” (No date is provided.) 5. In 1996 a male supervisor told Plaintiff “he coul d not blame a dog for wanting to bite her on the buttocks.” 6. In March 1997 coworkers laughed when Plaintiff “ate a banana as a metaphor for female oral gratification of a man.” 7. In the spring of 1997 two male supervisors includ ed Plaintiff “in a conversation during which they told a joke using a piece of paper that symbolized a man’s penis.” 8. In the summer of 1997 a male coworker “put his ar m around [P]laintiff and invited her to his birthday party s aying[,] ‘[W]e’ll just get drunk and see what happens from there.’”-9-

9. A male supervisor told Plaintiff that her coworke rs “might help her if she rolled up her shorts and would undo her UPS blo use.” (Plaintiff testified at her deposition that this occurred in t he summer of 1997.) 10. In June 1997 a male supervisor showed Plaintiff “a photograph of a birthday cake depicting a naked woman.” 11. In June 1997 another male supervisor told Plaint iff that if “she would ‘bat’ her eyes and do some ‘sweet talking’ she might get a [different] male supervisor . . . to allow her to drive a diffe rent truck.” 12. In August 1997 two male coworkers asked Plaintif f “whether she had ‘condoms or crotchless panties’ in her purse.” 13. In October 1997 Plaintiff learned from a male supervisor “that he had been asked by another UPS manager whether or not he had impregnated [Plaintiff].”
UPS concedes that the foregoing incidents are gende r-related and does not challenge their admissibility. Its sole contention is that considered as a whole, these alleged incidents are insufficiently severe o r pervasive as a matter of law to create a sexually hostile work environment. “[O]ur precedent underscores the severity and perva siveness evaluation is particularly unsuited for summary judgment because it is quintessentially a question of fact.” McCowan v. All Star Maint., Inc. , 273 F.3d 917, 923 (10th Cir. 2001) (internal quotation marks omitted). Althoughthis is a close case for summary judgment, the comments and conduct at issue here fall within the spectrum of what we have previously held to be suff icient for a rational jury to find an actionable hostile work environment. See Smith v. Northwest Fin.-10-

Acceptance, Inc. , 129 F.3d 1408, 1413-15 (10th Cir. 1997) (jury rea sonably could find that six comments over 23-month period created a hostile environment; comments included a supervisor, within earshot of p laintiff’s coworkers, telling plaintiff to “get a little this weekend” so that sh e would “come back in a better mood”; calling her a “sad piece of ass”; and tellin g her she “would find a decent man if [she] just quit dating Mexicans”); O’Shea v. Yellow Tech. Servs., Inc. , 185 F.3d 1093, 1098-1102 (10th Cir. 1999) (reversing su mmary judgment as jury could find hostile environment where plaintiff hear d male coworker compare his wife to Playboy magazine, describe a dream involvin g a naked woman, make frequent derogatory comments about women, and tell other employees that plaintiff was planning to file a sexual harassment suit against him, and where plaintiff alleged that such conduct caused her to b e ostracized by her coworkers and impeded her ability to do her job). We note that an actionable hostile work environmentrequires objectionable conduct that is “severe orpervasive,” Penry , 155 F.3d at 1261 (emphasis added); the test is disjunctive, and either element provide s an independent ground for finding a hostile work environment. Smith , 129 F.3d at 1415; Witt v. Roadway Express , 136 F.3d 1424, 1432 (10th Cir. 1998). Even assum ing that UPS is correct that, when viewed in the context of the wor k environment at UPS, the above-cited incidents were not cumulatively severe (an issue we do not address),-11-

there is sufficient evidence for Plaintiff to survi ve summary judgment on the issue of pervasiveness. Although UPS asserts that the co nduct at issue occurred over a seven-year period and is therefore not pervasive as a matter of law, at least eight of the thirteen incidents occurred over an eight-mo nth period in 1997. Under the circumstances, we believe that a rational jury coul d find that the alleged harassment was sufficiently pervasive to create an objectively hostile work environment. Cf. Smith , 129 F.3d at 1415 (pervasiveness inquiry requires analysis of the “number, sequence, and timing of the conduct ”); see id. (six offensive gender-related statements over 23-month period coul d reasonably be found pervasive); cf. Penry , 155 F.3d at 1263 (gender-related comments to plai ntiff in three-year period “too few and far between to be co nsidered sufficiently severe or pervasive” (internal quotation marks omitted)). Finally, we believe that Plaintiff has pointed to s ufficient evidence to survive summary judgment on the subjective prong of the test. See Penry , 155 F.3d at 1261 (“plaintiff must make a showing that t he environment was both objectively and subjectively hostile”). As discuss ed more fully below, Plaintiff complained about some of the incidents to her union steward, and informed two different supervisors in the summer of 1997 (when m ost of the incidents allegedly occurred) that she felt she was being sexually hara ssed. Viewed in the light most-12-

favorable to Plaintiff, this evidence indicates that she subjectively perceived her work environment to be hostile. Accordingly, we hold that the district court erred when it granted summary judgment to UPS on the hostile-work-environment iss ue.

2. Affirmative defense As it did in the district court, UPS argues that ev en if Plaintiff was subjected to a hostile work environment, it is shie lded from liability under the affirmative defense outlined in Faragher v. City of Boca Raton , 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth , 524 U.S. 742 (1998). Because the district court ruled that summary judgment was appr opriate on the hostile-workenvironment issue, it did not address the Faragher/Ellerth defense. We now turn to that issue. Under Faragher and Ellerth an employer is vicariously liable for the harassing acts of its supervisory employees, but itmay escape liability if it can prove a two-pronged affirmative defense. See Faragher , 524 U.S. at 807; Ellerth , 524 U.S. at 765. The defense, however, “can only b e raised if ‘no tangible employment action [wa]s taken’ by the harassing sup ervisor against the plaintiff employee.” Harrison v. Eddy Potash, Inc. , 248 F.3d 1014, 1024 (10th Cir. 2001) (quoting Faragher , 524 U.S. at 807) (brackets in Harrison )). Plaintiff does not dispute UPS’s assertion that it took no tangible employment action against her.-13-

Therefore, under Faragherand Ellerth UPS can escape liability if it can establish, by a preponderance of the evidence, that (1) it “ex ercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (2) Plaintiff “unreasonably failed to take advantage of any preve ntive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher , 524 U.S. at 807; Ellerth , 524 U.S. at 765. To succeed in this appeal, UPS must demonstrate that there are no material issues of fa ct and that it is entitled to judgment as a matter of law on both prongs of the d efense. See Harrison , 248 F.3d at 1024-1026 (defendant must prove both prongs of defense to prevail); Ellerth , 524 U.S. at 765 (affirmative defense “comprises two necessary elements”). UPS argues that both prongs of the Faragher/Ellerth defense are met here. It asserts that under the first prong it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” Faragher , 524 U.S. at 807; Ellerth , 524 U.S. at 765, because it had promulgated a sex ual harassment policy that was in effect during Plaintiff’s employment. This policy defined sexual harassment and contained the following “Reporting P rocedure”: If you believe you have been the subject of sexual harassment, or if you are aware of a situation that could constitute sexual harassment, immediately notify your supervisor, or Human Resources manager (who is the designated Affirmative Action Officer i n your district). The matter will be investigated in a confidential m anner.-14-

United Parcel Service will take prompt corrective a ction against sexual harassment. Anyone who is found, upon inves tigation, to have engaged in sexual harassment will be subject t o appropriate discipline up to and including termination of emplo yment and may be subject to personal legal and financial liability. This policy applies to all UPS employees. Aplt’s App. at 139 (emphasis added). UPS further a sserts that under the second prong of the defense, Plaintiff “unreasonably faile d to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” Faragher , 524 U.S. at 807; Ellerth , 524 U.S. at 765, because she failed to lodge a proper complaint under its sexual harassment policy. Plaintiff counters that she properly complained abo ut sexual harassment, because she (1) informed her union steward about a number of the allegedly harassing incidents, and (2) complained in 1997 to two supervisors about sexual harassment. We agree with UPS that Plaintiff’s complaints to the union steward—who is neither a “supervisor” nor a “Human Resources manager”—were not reasonable attempts to complain about sexual ha rassment at UPS. Nevertheless, a rational jury could infer that she reasonably complained about sexual harassment to a supervisor. According to Plaintiff’s interrogatory responses, i n July 1997 she spoke with Mark Kelly, who UPS admits is a supervisor within the meaning of its sexual harassment policy. She stated that she complained to Mr. Kelly-15-

about unfair treatment and sex harassment. Plainti ff explained to Mark Kelly that other drivers are continually getti ng away with things that she was suspended for. Plaintiff expla ined to Mark Kelly that she believed Hally Price [one of Plaintiff’s s upervisors] does not like women in his workplace including [P]laintiff. Mark Kelly immediately began defending Hally Price and making excuses for the way things are done around UPS. Mark Kelly also sa id to [P]laintiff[,] “If a person fakes as many injuries as [the [P]laintiff does] they can expect to have some troubles somewhe re along the way. Aplt’s App. at 278. Plaintiff testified at her deposition about her con versation with Mr. Kelly: Q. [Y]ou just came up and said, I’m being unfairly treated and sexually harassed, and left it at that; is that what you’re telling me? A. I told him about the discrimination part of it, how he seems to always single me out and let some of the guys get away with things. And Mark Kelly started defending him. So at that p oint, I didn’t feel like it was going to be beneficial to tell him anym ore . . . because he was already defending him on that account.

. . . . Q. With respect to sexual harassment, did you evertell him anything other than, I think I’m being sexually harassed?
A. No. Q. You never gave him any detail, did you?
A. No. Aplee’s Supp. App. at 60-61. Construing all reasonable inferences in favor of Pl aintiff, the above-cited evidence indicates that Plaintiff complained genera lly about “sexual harassment”-16-

to Mr. Kelly. UPS focuses on the fact that Plainti ff failed to provide details of the harassment. But a rational jury could conclude that her failure to provide details to Mr. Kelly was not unreasonable in light of his hostile response to her general complaint of sexual harassment (according t o Plaintiff he “defend[ed]” a fellow supervisor and “ma[de] excuses” for practice s at UPS) and the fact that he did not solicit such details from her. Accordingly , viewing the evidence in the light most favorable to Plaintiff, UPS was not enti tled to summary judgment on the Faragher/Ellerth defense. B. Retaliation Plaintiff argues that the district court erred when it granted summary judgment on her retaliation claims under Title VII and the FMLA. We review such claims under the analytical framework set fort h in McDonnell Douglas Corp.
v. Green , 411 U.S. 792 (1973). See Wells v. Colo. Dept. of Transp. , 325 F.3d 1205, 1212 (10th Cir. 2003) (Title VII); Richmond v. Oneok, Inc. , 120 F.3d 205, 208 (10th Cir. 1997) (FMLA). Under that familiar s tandard, Plaintiff initially must establish a prima facie case, which UPS may re but by offering a legitimate nondiscriminatory reason for the adverse employmentaction; if UPS does so, the burden shifts back to Plaintiff to show that the as serted reason is pretextual. See Wells , 325 F.3d at 1212; Richmond, 120 F.3d at 208.-17-

To establish a prima facie case of Title VII or FML A retaliation, Plaintiff must show that (1) she engaged in protected activity under the applicable act; (2) she subsequently suffered an adverse employment act ion; and (3) a causal connection existed between the protected activity a nd the adverse employment action. Wells , 120 F.3d at 1213; Richmond, 120 F.3d at 208-09. The district court found that Plaintiff’s claims under both stat utes failed because she presented insufficient evidence of her asserted adv erse action—constructive discharge. Plaintiff contends that this was error, and also appears to argue that the district court erroneously ignored her other al leged adverse action—her “termination,” which was subsequently reduced to a five-day suspension and served concurrently with her pregnancy leave, with no monetary loss to Plaintiff—when it rejected her Title VII retaliatio n claim. We address each argument in turn.

1. Constructive discharge “Constructive discharge occurs when the employer byits illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee’s position would feel compel led to resign.” Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 534 (10th Cir. 1998) (internal quot ation marks omitted). “Essentially, a plaintiff must show that she had no other choice but to quit.” Id. (internal quotation marks omitted). “The conditio ns of employment-18-

must be objectively intolerable; the plaintiff’s su bjective views of the situation are irrelevant.” Id. (internal quotation marks omitted). “If an employ ee resigns of her own free will, even as a result of the emplo yer’s actions, that employee will not be held to have been constructively discha rged.” Heno v. Sprint/United Mgmt. Co. 208 F.3d 847, 858 (10th Cir. 2000) (internal quotation marks omitted). In the district court Plaintiff pointed to several incidents that allegedly occurred during a two-week period following her return to UPS from pregnancy leave, and argued that these incidents compelled he r to resign. As identified in her appellate brief, those incidents are (1) superv isors “constantly criticized and disciplined” Plaintiff “for minor infractions supervisors ordinarily ignored” (although she has pointed to no specific examples); (2) a male supervisor initially refused Plaintiff’s request to return to town to us e a restroom while they were delivering packages along a rural route, suggesting instead that she “go squat” behind the truck or “find a tree somewhere” (althou gh she admitted that he drove her to town to use the restroom when she rejected h is suggestion); (3) the same supervisor suggested Plaintiff urinate “into a 2 qu art pop bottle” while making deliveries on the rural route; (4) a supervisor, up on seeing Plaintiff get a dolly to unload packages, said “oh bull shit, you know you d on’t need that dolly” (although she admitted that he did not prevent or f orbid her from using the dolly, and she did in fact use the dolly); and (5) a supervisor failed to take corrective-19-

action to discipline a UPS driver who made a crude comment regarding Plaintiff’s pregnancy (although she pointed to no evidence indi cating that the supervisor heard the comment or that she complained to anybody about it). The conditions at UPS described by Plaintiff were n ot such that a reasonable employee would have felt compelled to re sign. Moreover, rather than her resignation being compelled, the evidence indic ates that her resignation was entirely a product of her “own free will,” Heno , 208 F.3d at 858 (internal quotation marks omitted). Plaintiff fails to pointto any evidence that she complained to anyone at UPS about her treatment fol lowing her return from her seven-month pregnancy leave, or otherwise attempted to alleviate her allegedly “intolerable” working conditions; this failure unde rmines her contention that she had “ no other choice but to quit.” Sanchez , 164 F.3d at 534. Also, she first procured a job at Federal Express, then gave UPS a two-week notice of her intent to quit, before continuing to work at UPS until Sep tember 18, 1998, when she left for her new job. Cf. Yearous v. Niobrara County Mem’l Hosp. , 128 F.3d 1351, 1356 (10th Cir. 1997) (whether employee is “permitt ed to select the effective date of resignation” is a factor indicating that resignation was not a constructive discharge (internal quotation marks omitted)). Acc ordingly, we hold that the district court did not err when it ruled that Plain tiff was not constructively discharged.-20- 2. Termination/suspension as adverse action Next, Plaintiff appears to argue that the district court erred in not considering her retaliation claim under Title VII t hat alleged as an adverse action the termination/suspension. (She does not contend that the termination/suspension is a basis for her claim und er the FMLA.) UPS fails to address this argument in its Answer Brief, althoughit is clear from the record that the claim was at issue below and briefed by both pa rties in the district court. The district court also made no reference to this claim in its order granting UPS summary judgment on all Plaintiff’s claims. Under the circumstances we believe it is appropriate for the district court to address in the first instance Plaintiff’s contention that she was terminated (and subsequentl y suspended, with no monetary loss to her) on December 24, 1997, in reta liation for her November 6, 1997 Title VII lawsuit. We accordingly remand for consideration of the claim, expressing no opinion about its merits.
C. Costs Finally, Plaintiff appeals the district court’s awa rd of costs to UPS as the prevailing party. Because UPS no longer qualifies for prevailing party status (a determination that must await further proceedings), we vacate the award and remand the issue for further consideration upon the resolution of Plaintiff’s Title VII claims. Walker I, 240 F.3d at 1279.-21-

IV. CONCLUSION We REVERSE the district court’s grant of summary ju dgment on Plaintiff’s sexual harassment claims, and AFFIRM its grant of s ummary judgment on her constructive discharge claims under Title VII and t he FMLA. We VACATE the district court’s award of costs in favor of UPS. W e REMAND for further proceedings consistent with this opinion.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge