United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 97-3678

 

Lisa A. Rorie, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

United Parcel Service, Inc., *

*

 Appellee. *

 

Submitted: May 14, 1998

 Filed: July 23, 1998

 

Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

 

HEANEY, Circuit Judge.

Lisa A. Rorie was a United Parcel Service (UPS) employee from January 25,

1993 until UPS fired her on February 9, 1996. She filed suit in federal district court

alleging that UPS managers and employees harassed her, that the harassment created

a hostile work environment, and that UPS discharged her in violation of Title VII, 42

U.S.C. §§ 2000e-2000e-17, and Arkansas state law. The district court granted

summary judgment in favor of UPS and Rorie appeals. We reverse in part and affirm

in part.
According to Rorie, the majority of events upon which her discharge and hostile 1

environment claims are predicated involve the actions of Lofton. Because Lofton’s

actions fall outside the 180-day period and cannot be considered part of a continuing

violation, we need not elaborate on them. We note that Rorie never filed a complaint

or grievance based on Lofton’s actions.

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I.

The facts of this case are discussed at length in the district court’s opinion, see

Rorie v. United Parcel Service, Inc., No. 96-3089, Mem. Op. (W.D. Ark. Sept. 25,

1997), and we recount only those facts relevant to the determination of this case. Rorie

began working for UPS on January 25, 1993, as a package car driver in Harrison,

Arkansas and was a member of the International Brotherhood of Teamsters, Chauffeurs,

Warehouseman and Helpers of America and Local Union 373 (Union). During the

relevant time period, the Union had a collective bargaining agreement (CBA) with the

UPS. Rorie alleged that Kim Lofton, her supervisor from the time she began her

employment until May or June of 1995, repeatedly harassed her and treated her

unfairly.1

In May or June 1995, Tommy Rutledge became Rorie’s supervisor, which he

remained until her termination. In September 1995, UPS opened the Mountain Home

Center. Rorie, Rutledge, and Randy McFadden all transferred to the Mountain Home

Center. McFadden, who managed the Harrison Center since May 1995, also managed

the Mountain Home Center. In her deposition, Rorie contended that McFadden sexually

harassed her, testifying that McFadden frequently told her that she smelled good, patted

her on the back, and brushed up against her. She alleged that McFadden’s behavior

continued throughout her employment with UPS, and that McFadden’s behavior was

offensive and that she considered it sexual harassment.

On February 9, 1996, Clyde Dismuke, a UPS investigator reviewing the records

of the Mountain Home Center, confronted Rorie about missing “cash on delivery”
We note that nothing in the record suggests that Ragar discussed this matter

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with Dodson, Lofton, Rutledge, or McFadden. 

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(COD) money. Dismuke relayed the information from his investigation to Bob Ragar,

the UPS labor relations manager. Based on Dismuke’s findings, Ragar decided to

terminate Rorie under Article 51 of the CBA for failure to turn in COD monies. On

February 9, 1996, Rutledge informed Rorie of her termination. Rorie does not suggest 2

that Ragar was aware of any harassment. During the relevant time period, Ragar fired

four other drivers--all male--for apparent dishonesty in handling COD money, with three

of the firings resulting from investigations performed by Dismuke. 

On March 5, 1996, Rorie filed a grievance pursuant to the existing CBA. On

November 20, 1996, after a period of deadlocks in the grievance procedure, the

Southern Conference Area Parcel Grievance Committee (Grievance Committee) denied

her grievance. Under the CBA, the Grievance Committee’s decision was final and

binding. On May 31, 1996, Rorie filed a charge of sex discrimination with the EEOC

and, on December 5, 1996, received a right-to-sue letter. 

On December 20, 1996, Rorie filed suit in federal district court. She alleged that

UPS subjected her to disparate treatment, harassment, and ultimately terminated her

because of her gender in violation of Title VII. In addition, Rorie asserted Arkansas

state law claims of intentional infliction of emotional distress (outrage) and a claim of

wrongful discharge.

On September 25, 1997, the district court granted summary judgment in favor of

UPS. With regard to Rorie’s Title VII discharge claim, the district court held that Rorie

failed to provide evidence indicating intentional discrimination and, even assuming she

could make out a prima facie case, Rorie was unable to show that the reason for her

termination was pretextual. As to Rorie’s Title VII harassment claim, the district court

determined that the alleged incidents of harassment involving two UPS
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employees occurred more than 180 days before Rorie filed her EEOC complaint. The

district court determined that the remaining alleged incidents falling within the 180-day

period could not support her hostile-environment claim. Finally, the district court

determined that Rorie’s allegations did not sustain her Arkansas state law claims of

outrage and wrongful termination. Rorie appeals.

II.

“Summary judgment is only appropriate when no genuine issue of material fact

exists, and the moving party is entitled to judgment as a matter of law.” Callanan v.

Runyun, 75 F.3d 1293, 1296 (8th Cir. 1996) (citations omitted). In our de novo review

of the district court’s grant of summary judgment, “we apply the same standard as the

district court, resolving all disputed facts and drawing all inferences in favor of the

nonmoving party.” Id. (citation omitted). 

A. Discharge Claim

Title VII prohibits an employer from discriminating “against any individual with

respect to [her] compensation, terms, conditions, or privileges of employment” on the

basis of her gender. 42 U.S.C. § 2000e-2(a)(1). In McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), the United States Supreme Court set forth burden-shifting

standards to be applied in Title VII cases. First, the plaintiff must establish a prima

facie case of discrimination. See id. at 802. If the plaintiff successfully makes out her

prima facie case, the burden then shifts to the defendant “to articulate some legitimate,

nondiscriminatory reason for the employee’s rejection.” Id.

[W]hen the employer produces a nondiscriminatory reason for its actions,

the prima facie case no longer creates a legal presumption of unlawful

discrimination. The elements of the prima facie case remain, however, and

if they are accompanied by evidence of pretext and disbelief of the

defendant’s proffered explanation, they may permit the jury to find for the
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plaintiff. . . . Furthermore, as the Hicks Court explained, the plaintiff must

still persuade the jury, from all the facts and circumstances, that the

employment decision was based upon intentional discrimination.

Ryther v. KARE 11, 108 F.3d 832, 837-38 (8th Cir. 1997) (citation and footnote

omitted) (emphasis in original).

In order to make out a prima facie discharge claim under Title VII, Rorie must

show that (1) she is a member of a protected group; (2) that she met applicable job

qualifications; (3) that she was discharged; and (4) that her discharge occurred under

circumstances that create an inference of unlawful discrimination. See Thomas v. First

Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997) (citations omitted).

The district court held that, even if Rorie had established a prima facie case, she

failed to show that her termination was pretextual. See Rorie, No. 96-3089, Mem. Op.

at 24. We agree with the district court that the relevant inquiry was whether Rorie

created a genuine issue of material fact as to whether her discharge was gender-based

and not whether her termination was reasonable. It is not the task of this court to

determine whether Dismuke’s investigation was sufficiently thorough or fair. After a

careful review of the record, we agree with the district court that Rorie failed to create

a genuine issue of material fact. Accordingly, we affirm the district court’s grant of

summary judgment on Rorie’s discharge claim.

B. Hostile Environment Claim

Rorie may “establish a violation of Title VII by proving that discrimination based

on sex has created a hostile or abusive work environment.” Meritor Savings Bank v.

Vinson, 477 U.S. 57, 66 (1986). “For sexual harassment to be actionable, it must be

sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and

create an abusive working environment.’” Id. at 67 (citation omitted). Therefore,
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Rorie “must show both that the offending conduct created an objectively hostile

environment and that she subjectively perceived her working conditions as abusive.”

Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997) (citation omitted).

As a general matter, actionable incidents of sexual harassment are those that

occur within 180 days of filing a complaint with the EEOC. See 42 U.S.C. § 2000e5(e)(1). Therefore, the relevant “cut-off” date for conduct that can be considered under

Rorie’s hostile environment claim is December 3, 1995. However, if Rorie can show

that “an ongoing pattern or practice of discrimination rather than one isolated instance,

the alleged violation shall be deemed continuing.” Jenson v. Eveleth Taconite Co., 130

F.3d 1287, 1303 (8th Cir. 1997) (citations and emphasis omitted), cert. denied sub

nom., Oglebay Norton Co. v. Jensen, No. 97-1765, 1998 WL 221095 (U.S. June 26,

1998). Even if a plaintiff is unable to show a continuing violation, however, we have

held that instances of harassment occurring outside the 180-day period may be

admissible to provide relevant background to later discriminatory acts. See Kimzey v.

Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir. 1997) (citing United Air Lines, Inc.

v. Evans, 431 U.S. 553, 558 (1977)) (“Incidents which occurred outside the filing

period also may be admissible as relevant background to later discriminatory acts.”); see

also Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 355 (8th Cir.

1997) (citation omitted) (evidence supporting a finding of a hostile environment need

not be compartmentalized, but should be based on the totality of circumstances). 

UPS argues that the only allegations falling within the 180-day period are

McFadden’s comments about Rorie smelling good, patting her on the back, and

brushing up against her. UPS contends that these actions are insufficient to support a

hostile environment claim because McFadden was seldom in the Mountain Home

Center, spending most of his time managing the Batesville and Harrison centers. UPS

also contends that Rorie failed to complain of McFadden’s conduct. We disagree.
7

In September 1995, McFadden telephoned Rorie at home. During their

conversation, McFadden asked Rorie if she would like to go swimming and whether she

had heard the rumors about a co-worker’s penis size. She declined the swimming

invitation. During the same conversation, Rorie complained to McFadden about a

female co-worker’s attitude toward her. McFadden told her it was because Rorie

looked better in the UPS uniform than the other woman. Rorie testified that McFadden

would often tell her that she smelled good, pat her on the back, and brush up against

her. This behavior continued throughout her employment with UPS. Rorie testified

that she thought McFadden was constantly “coming on” to her; she characterized him

as “always flirty” and said that was “[j]ust the way he [was] with women”; and she

considered McFadden’s behavior offensive and believed that it constituted sexual

harassment. Rorie stated in her deposition that she complained about McFadden’s

behavior to seniority driver Jim Riddle and union steward Melvin Shaddox and that she

was unaware of any company policy regarding sexual harassment.

While we concede that the facts of this case are on the borderline of those

sufficient to support a claim of sexual harassment, we cannot say that a supervisor who

pats a female employee on the back, brushes up against her, and tells her she smells

good does not constitute sexual harassment as a matter of law. Recognizing that the

September 1995 conversation falls outside of the 180-day period, we believe that, at the

very least, McFadden’s comments suggest that his later behavior presents a jury

question as to hostile environment.

Our remand of this case is also counseled by recent developments in Title VII

case law. On June 26, 1998, after oral argument in this case, the United States Supreme

Court decided two important cases. See Burlington Indus., Inc. v. Ellerth, No. 97-569,

1998 WL 336326 (June 26, 1998); Faragher v. City of Boca Raton, No. 97-282, 1998

WL 336322 (June 26, 1998). In both cases, the Supreme Court held that “[a]n

employer is subject to vicarious liability to a victimized employee for an actionable

hostile environment created by [the employee’s] supervisor.” Ellerth at *15;
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Faragher at *19. An employer may defend against liability or damages, however, if it

establishes by a preponderance of the evidence “(a) that the employer exercised

reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the employer or to avoid harm otherwise.”

Ellerth at *15; Faragher at *19. 

 Accordingly, we reverse the district court’s grant of summary judgment in favor

of UPS on Rorie’s hostile environment claim.

C. Outrage Claim

In order to establish a claim for outrage under Arkansas law, Rorie must have

shown that (1) UPS intended to inflict emotional distress or knew or should have known

emotional distress was the likely result; (2) UPS’s conduct was extreme, outrageous and

utterly intolerable in a civilized community; (3) UPS’s actions caused anguish or

distress to Rorie; and (4) the emotional distress suffered was severe and of a type that

no reasonable person should be expected to endure. See Hollomon v. Keadle, 931

S.W.2d 413, 415 (Ark. 1996) (citations omitted). We note that the Arkansas Supreme

Court has repeatedly held that “the tort of outrage is not favored by this court and that

clear-cut proof is required to establish the elements in outrage cases.” Shepherd v.

Washington County, 962 S.W.2d 779, 792 (Ark. 1998) (citations omitted). After

carefully reviewing the record, we agree with the district court that the alleged instances

of discrimination and harassment do not support an outrage claim and that summary

judgment was properly granted.

D. Wrongful Termination Claim

In its summary judgment motion, UPS argued that Rorie’s state law wrongful

termination claim was tantamount to a claim brought under the Arkansas Civil Rights
9

Act of 1993, Ark. Code Ann. §§ 16-123-101 to 108, and must fail for the same reasons

as her Title VII claim. Alternatively, UPS argued that her claim was preempted by §

301 of the Labor Management Relations Act, 29 U.S.C. § 185. In granting summary

judgment, the district court noted that Rorie failed to respond to UPS’s arguments and

assumed that she had abandoned her claim or agreed with UPS as to preemption. In the

alternative, the district court, having disposed of Rorie’s federal claims, declined to

exercise jurisdiction. It is far from clear whether Rorie abandoned her claims and,

because we reverse in part, we remand this issue to the district court for a clear

determination of whether Rorie, in fact, abandoned her claims; and if she did not,

whether, based on our decision here, the district court properly exercises jurisdiction

over those claims.

III.

For the reasons discussed above, we affirm the district court’s grant of summary

judgment in favor of UPS on Rorie’s Title VII discharge claim and Arkansas state law

claim of outrage. Because Rorie presented genuine issues of material fact on her Title

VII hostile environment claim, we reverse the district court’s grant of summary

judgment on that issue. Further, because the district court declined to exercise

jurisdiction over her state law wrongful termination claim at least in part due to its

disposition of her federal claims and because we reinstate a portion of Rorie’s federal

claims, we remand the issue for a clear determination of the proper disposition of the

state law wrongful termination claim.

A true copy.

Attest.

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