## 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. Ror ie was a United Parcel Service (UPS) employee from January 25 , 19 93 until UPS fired her on February 9, 1996. She filed suit in federal district cour t alleg ing that UPS managers and employees harassed her, that the harassment created a host ile 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 grante d summary judgment i n favor of UPS and Rorie appeals. We reverse in part and affirm in part.According to Rorie, the majority of events upon which her dis charge and hostile 1 environme nt

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 n eed not elaborate on them. We note that Rorie never filed a complaint or grievance based on Lofton’s actions.
2 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 t he determination of this case. Rorie beg an working for UPS on January 25, 1993, as a package car driver in Harrison , Arkansas and was a member of the International Brotherhood of Team sters, Chauffeurs, Warehous eman and Helpers of America and Local Union 373 (Union). During th e relevant ti me period, the Union had a collective bargaining agreement (CBA) with the UPS. Rorie alleged that Kim Lofton, her supervisor from the time she began he r empl oyment

until May or June of 1995, repeatedly harassed her and treated he r unfairly. 1

In May or June 1995, Tommy Rutledge became Rorie’s supervisor, which h e remain ed until her termination. In September 1995, UPS opened the Mountain Home Center. R orie, Rutledge, and Randy McFadden all transferred to the Mountain Home Center. McFadden, who manage d 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 h er that she smelled good, patted her on the back, and brushed up against her. She alleged that McFadden’s behavio r
con tinuedthroughout her employment with UPS, and that McFadden’s behavior wa s offensive and that she considered it sexual harassment.
On February 9, 1996, Clyde D ismuke, a UPS investigator reviewing the records of the Mountain Home Center, confronted Rorie about missing “cash on delivery”We note t hat nothing in the record suggests that Ragar discussed this matte r 2 with Dodson, Lofton, Rutledge, or McFadden.
3 (COD) money. Dism

uke relayed the information from his investigation to Bob Ragar, the UPS labor relations manager. Based on Dismuke’s findings, Ragar decided t o termi nate Rorie under Article 51 of the CBA for failure to turn in COD monies. O n February 9, 1996, Rutledge informed Rorie of h er termination. Rorie does not suggest 2 that Ragar was aware o f any harassment. During the relevant time period, Ragar fired four other drivers--all male--for apparent dishonesty in handling COD m oney, with three of the firings resulting from investigations performed by Dismuke.

On March 5, 1996, Rorie filed a grievance pursuant to the existing CBA. O n November 20 , 1996, after a period of deadlocks in the grievance procedure, th e Southern Conference Area Parcel Grievance Committee (Grievance Committee) denied her grievan ce. Under the CBA, the Grievance Committee’s decision was final an d 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 he r because of her gender in violation of Title VII. In addition, Rorie asserted Arkansa s
s t ate law claims of intentional infliction of emotional distress (outrage) and a claim of wrongful discharge.
On September 25, 1997, the district co urt granted summary judgment in favor of UPS. With regard to Rorie’s Title VII discharge claim, the dist rict court held that Rorie failed to provide evidence indicating intentional discrimination and, even assuming she couldmake out a prima facie case, Rorie was unable to show that the reason for he r termination was pretextual. As to Ror ie’s Title VII harassment claim, the district court determined that the alleged incidents of harassment involving two UPS4

employees occurred

more than 180 days before Rorie filed her EEOC complaint. The district court determined that the re maining alleged incidents falling within the 180-day pe riodcould not support her hostile-environment claim. Finally, the district cour t determined that Rorie’s allegations did not sustain her Arkansas state law claims o f outrage and wrongful termination. Rorie appeals.

II.

“Summ ary 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) (cit ations omitted). In our de novo review of the dis trict 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 th e nonmoving party.” Id. (citation omitted).
A. Discharge Claim
Title VII prohibits an employ er from discriminating “against any individual with resp ect to [her] compensation, terms, conditions, or privileges of employment” on the basis of h er gender. 42 U.S.C. § 2000e-2(a)(1). In McDonnell Douglas Corp. v

. Green , 411 U.S. 792 (1973), the United St ates Supreme Court set forth burden-shifting standards to be applied in Title VII cases. First, the plaintiff must establish a prim a facie case of discrimi nation. See id. at 802. If the plaintiff successfully makes out her prima facie case, the burde n 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 unlawfu l discrimination. The elements of the prima facie case remain, h owever, and if they ar e accompanied by evidence of pretext and disbelief of th e defendant’s proffered explanation, the y may permit the jury to find for the5

plaintiff. . . . Furthermore, as the Hicks Court explained, the plaintiff must still persuade the jury, from all the facts and circumstances, that th e employment decision was based upon intentional discrimination. Ry ther v. KARE 11 , 108 F.3d 832, 837-38 (8th Cir. 1997) (citation and footnot e 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 jo b qualifications; (3) that she was discharged; and (4) that her discharge occurred unde r circumstances that create an infere nce 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 Rori e 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 t o 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 iss ue of material fact. Accordingly, we affirm the district court’s grant o f summary judgment on Rorie’s discharge claim.

B. Hostile Environment Claim
Rorie may “establish a violation of Title VII by proving t hat 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 vic tim’s] employment and create an abusive working environment.’” Id. at 67 (citation omitted). Therefore,6

Rorie “must show both that the offending conduct created an objectively hostil e environ ment

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 tha t
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 Ror ie’s hostile environment claim is December 3, 1995. However, if Rorie can show that “an ongoing pattern or p ractice of discrimination rather than one isolated instance, the alleged violation shall be deemed continuing. ” Jenson v. Eveleth Taconite Co. , 130 F.3d 12 87, 1303 (8th Cir. 1997) (citations and emphasis omitted), cert. denied su b
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 b e admissible to provide re levant background to later discriminatory acts. See Kimzey v. Wal-Mart Stores, Inc. , 107 F.3d 568, 5 73 (8th Cir. 1997) (citing United Air Lines, Inc.
v. Evans , 431 U.S. 553, 558 (1977)) (“Incidents which occurred outside the filin g period also may be admissible as relevant background to later discriminator y 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 ar e McFadden’s comments about Rorie smelling good, patting her on the back, an d brushing up against her. UPS contends that these actions are insufficient to support a hostile environment claim because McFadden was seldom in the Mountain Hom e 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 Sept ember 1995, McFadden telephoned Rorie at home. During thei r conversation, McFadden asked Rorie if she would like to go swimming and whether she ha d heard the rumors about a co-worker’s penis size. She declined the swimmin g invitat ion. During the same conversation, Rorie complained to McFadden about a fe male co-worker’s attitude toward her. McFadden told her it was because Rori e looked better in the UPS uniform than the other woman. Rorie testified that McFadden would oft en tell her that she smelled good, pat her on the back, and brush up agains t her. This behavior continued throughout her employment with UPS. Rorie testifie d 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 sh e consid ered McFadden’s behavior offensive and believed that it constituted sexua l harass ment. Rorie stated in her deposition that she complained about McFadden’ s behavior to seniority driver Jim Riddle and uni on steward Melvin Shaddox and that she was unaware of any company policy regarding sexual harassment.

While we conc ede that the facts of this case are on the borderline of thos e sufficient to support a claim of sexual h arassment, we cannot say that a supervisor who pats a female employee on the back, brushes up against her, and tells her she smell s good does not constitute sexual harassment as a matter of law. Recognizing that th e September 1995 conversation falls outside of the 180-day perio d, we believe that, at the very least, McFadden’s comments suggest that his later behavior presents a jur y question as to hostile environment.

Our remand of this case is also counseled by recent developments in Title VI I case law. On June 26, 1998, after oral argument in this case, the Uni ted States Supreme Court decided two important cases. Se e 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 empl oyer is subject to vicarious liability to a victimized employee for an actionabl e hostile environment created by [the employee’s] supervisor.” Ellerthat *15;8

Fara gher at *19. An employer may defend against liability or damages, however, if it estab lishes by a preponderance of the evidence “(a) that the employer exercise d reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaint

iff employee unreasonably failed to take advantage of any preventive
or corr ective opportunities provided by the employer or to avoid harm otherwise. ” Ellerthat *15; Faragher

at *19.
Accordingly, we reverse the district co urt’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 hav e shown that (1) UPS intended to inflict emotional distress or knew o r 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 o r distress to Rorie; and (4) the emotional distress suffered was severe and of a type that
no reasona ble person should be expected to endure. See Hollomon v. Keadle , 93 1 S.W.2d 413, 415 (Ark. 1996) (citations omitted). We note that the Arkansas Supreme Court has repea

tedly 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

. Was hingtonCounty , 962 S.W.2d 779, 792 (Ark. 1998) (citations omitted). Afte r 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 summar y judgment was properly granted.
D. Wrongful Termination Claim

In its summary judgment motion, UPS argued that Rorie’s state law wrongfu l termination claim was tantamount to a claim brought under the Arkansas Civil Rights9

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 distr

ict 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 alt ernative, the district court, having disposed of Rorie’s federal claims, declined t o
exe rcise jurisdiction. It is far from clear whether Rorie abandoned her claims and , becaus e we reverse in part, we remand this issue to the district court for a clear det ermination of whether Rorie, in fact, abandoned her claims; and if she did not , whethe r, based on our decision here, the district court properly exercises jurisdictio n over those claims.

III.
For the reasons discussed above, w e affirm the district court’s grant of summary judgment in favor of UP S on Rorie’s Title VII discharge claim and Arkansas state law claim of outrage. B ecause Rorie presented genuine issues of material fact on her Title VII hostile environment claim, we reverse the district court’s grant of summar y judgment on that issue. Further, because the district court declined to exercis e juris diction over her state law wrongful termination claim at least in part due to it s dispos ition 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.