### The Honorab le Joseph E. Stevens, Jr., United States District 1 

### Judge for the Western District of Missouri. ___________ No. 95-3466

___________ Brenda Gillming, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Simmons Industries, * * Appellee. *

___________ Submitted: May 13, 1996 Filed: August 6, 1996

___________ Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

___________ WOLLMAN, Circuit Judge.

Br enda Gillming appeals the district court's judgment in favor o f 1 defendant Simmons Industries (Simmons) on her claim brought under Title VI I of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and th e Missour i Human Rights Act (MHRA), Mo. Rev. Stat. §§ 213.010 et seq. W e affirm.

I.

Gillmi ng began working on the day shift as a trimmer at Simmons ' poultryprocessing plant in Southwest City, Missouri, on June 7, 1991
. Gillming testified that on February 7, 1992, as she was walking across the parking lot to her car, she saw a co-worker,

### -2-

John Casey, sitting in his car. Another co-worker, Tony Guillermo, wa s leaning against Casey's car talking to him, and he yelled to Brenda that she had a flat tire and offered to help her chan ge it. Guillermo followed Gillming to her car. Upon discovering that she did not have a flat tire, Gillming informed Guillermo of this fact. Guill ermo then asked for a ride home. Gillming refused, whereupon Guillermo responded, "Well, I don't wan t to rape you Brenda. I just want to have sex with you." Gillming tol d Guillermo to leave, and he did. Gillming did not immediately report the incident to management because she believed she had handled it.
Gillming testified that on February 21, 1992, a second inciden t occurred involving Guillermo. As Gillming was retrieving her apron from the apron rack, she turned around to find Guillermo yelling at her that sh e was always bumping into him and never said "excuse me." Gillming tol d Guillermo that she had not bumped into him, wher eupon Guillermo struck her in the ch est with both hands. Gillming yelled back at Guillermo, usin g profanity.
Gillming immediately reported this i ncident, as well as the February 7 incident, to her supervisors, Doug Green and J ohn Meyers, who then spoke with Guillermo. The following week Meyers told Gillming that Guillermo ha d denied everything and that there was nothing the y could do. Gillming then reported the incident s to the plant personnel director, Kent Johnson, who instructe d her to fill out an incident report. Johnson reported to hi s sup ervisor, Don Felder, the same day that Gillming filed the complaint
. Johnson stated, however, that he believed it had no merit and he was not taking it seriously. Felder delegated to Johnson the task of investigatin g the complaint.
Gillming followed up with Johnson ab out a week later and reported to Johnso n that Guillermo was influencing his co-workers into laughing an d poin ting at her and making sexually harassing remarks. Johnson tol d Gillming that he was working on the problem.

### -3-

Gillming spoke with Johnson again the following week, telling him that the haras sment was continuing. Johnson once again assured her that he wa s working on the problem. Gillming persuaded anot her co-worker to report to Johnson the vulgar re marks that Guillermo and his friends had been making about Gillming. In March and April 1992, other incidents occurred, some of which Gillming reported to her supervisors.

Gillm ing had been having pain in her hands because of her job as a trimmer, and she was moved to work as a grader for a time. In May 1992, however, she was demo ted to the position of floor person, and her pay was cut. Gillming's workas a floor person required her to bend over to pick up chic ken parts that had fallen to the floor. Guillermo and other co

work ers threw chicken skin at her as she did so. They also called he r names such as "Barnyard Brenda." Other incident s occurred, which Gillming reporte d to her supervisors, and she was threatened by co-workers fo r reporting the incidents.

On May 29, 1992, Gillming was told to report to Johnson's offic e because Gu illermo had made a complaint about her. Both Guillermo an d Gillming discussed their complaints. Gillming t estified that Johnson told her that if she conti nued to complain she would "hit the road." Gillming wrote a letter to Roger Brune, Simmons' Vice-President of Personnel, on Ma y 29, 1992, detailing the incidents. She followed with a second letter date d June 2. Johnson also reported the situation to Brune. Brune instructed Johnso n to take statements from co-workers, and Brune interviewed bot h Guillermo and Gillming on June 9. Brune found there was no clear fault an d that inappropriate be havior had been demonstrated by both sides. Simmons determined that both Guillermo and Gillming should be retained, but that eachshould be issued a warning that future similar conduct could result in termination. Gillming, however, had already resigned her job.

### -4- Gillmin g filed a charge of discrimination with the Missour i Commissio n on Human Rights (MCHR) on July 31, 1992, setting out th e February 7 and 21, 1992, incidents. She filed her complaint in th e distri ct court on October 25, 1993, after receiving her right-to-su e letter. In her complaint, Gillming described the incidents occurring in February and alleged that Simmons discriminated against her by demoting he r and placing her on the night shift in retaliation for complaining about th e hara ssment. She also alleged that she "resigned her employment wit h Defend ant on account of the continuing sexual harassment she suffered. " She alleged violations of Title VII, the MHRA, and state common law.

The d istrict court granted Simmons summary judgment on Gillming' s retaliation and common law claims. The case was then submitted to the jur y to determine whether Gillming had suffered sexual harassment and whether she was constructively discharged.

The jury r eturned a verdict in favor of Simmons on the sexua l har assment claim and in favor of Gillming on the constructive discharg e claim. The jury awarded Gillming $33,000 in back pay and $1 in damages. The court then grante d Simmons' motion for judgment as a matter of law on the constructive discharge claim, finding that "[t]he evidence presented at tri al [was] insufficient to support a conclusion that plaintiff' s working conditions were intolerable when she quit." Gillming filed a motion for a new trial, which the court denied.

Gillmi ng argues on appeal that: (1) the district court erred i n giving Instruction No. 9, in that the instructio n (a) erroneously required the jury to find that the harassment was "sexually motivated"; (b ) erroneouslyused a "reasonable person," rather than a "reasonable woman" sta ndard; and (c) erroneously required Gillming to assume the burden o f proving that Simmons failed to take proper remedial action; and (2) th e district court erroneously excluded certain evid ence relating to a hostile work

### -5-

env ironment. Gillming does not challenge the district court's grant o f judgment as a matter of law to Simmons.

II.

We review

the district court's formulation of jury instructions for
an abuse of discretion. Transport Ins. Co. v. Chrysler Corp. , 71 F.3d 720 , 723 (8th Cir. 1995). We must determine "`whether the instructions, taken as a whole and viewedin light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury.'" Sherbert
v. Alcan Aluminum Corp. , 66 F.3d 965, 968 (8th Cir. 1995) (quoting Jones
v. Boa rd of Police Comm'rs , 844 F.2d 500, 504 (8th Cir. 1988), cert
. denied , 490 U.S. 1092 (1989)).

Instruction No. 9 reads as follows:

Your verdict must be for the Plaintiff on her sexua l harassment hostile work environment claim, if you find that plaintiff has proved, by a preponderance of the evidence, that: First: Plaintiff suffered from discrimination because of her sexby the intentional conduct of her fellow employee s consisting of unwelcome sexually motivated conduct, such a s unw elcome sexual propositions, sexual innuendo, sexuall y derogatory language, or other conduct which was directed a t plaintiff because she is female; Second: This alleged conduct was pervasive and regular; Third: The alleged conduct detrimentally affected Plaintiff;
Fo urth: The conduct would have detrimentally affected a reasonable person in Plaintiff's position; Fifth: Management level employees knew, or should have known, of the alleged sexual harassment described above; Sixth: Management level employees failed to implement proper remedial action.

### Title VII and the MHRA apply the same analysis. See Finley 2 

### v. Empiregas, Inc. , 975 F.2d 467, 473 (8th Cir. 1992). -6- If an y of the above elements have not been proved by a pre ponderance of the evidence, your verdict must be for th e defendant and you need n ot proceed further in considering this claim.
Pointing to the first paragraph of the instruction, Gillming argues that Instr uction No. 9 erroneously required the jury to find that th e harassment was sexually motivated in order to find for her on her sexual harassment claim. 2

We ag ree with Gillming that "[t]he predicate acts which support a hostile-environment s exual-harassment claim need not be explicitly sexual in natu re." Kopp v. Samaritan Health Sys., Inc. , 13 F.3d 264, 269 (8t h Cir. 199 3). It is sufficient that "`members of one sex are exposed t o disadvantageous terms or conditions of employment to which members of the other sex are not exp osed.'" Id. (quoting Harris v. Forklift Sys., Inc. , 114 S. Ct. 367, 372 (1993) (Ginsburg, J., concurring)). We do not believe , however, that the jur y instruction given by the district court required a finding that the acts were "explicitly sexual in nature."
In response to Gillming's objection to the words "sexually motivated conduct" in the instruction, the court added "or other conduct which was directed at plaintiff because she is female." We believe that thi s additio nal language sufficiently explained to the jury that "sexuall y motivated" meant only that the conduct needed to be directed at Gillming becau se of her sex and that thus the instruction fairly and adequatel y submitted the claim to the jury.
Gillming next argues that the district court erroneously used a "reaso nable person" rather than a "reasonable woman" standard i n det ermining whether her reactions to the incidents were reasonable. W e have found that the "reasonable woman" standard should be used

### -7-

in hostile environment litigation based on sex. Burns v. McGregor Elec. Indus. , 989 F.2d 959, 962 n.3 (8th Cir. 1993) ("[B]ehavior a reasonabl e woman would find objectionable may be actionable `even if many people deem it to be harmless or insignificant.'") Post- Burns , however, the Supreme Court h as employed the "reasonable person" standard in a hostile wor k environment case. Ha rris , 114 S. Ct. at 370 ("Conduct that is not severe
or p ervasive enough to create an objectively hostile or abusive wor k environment -- an env ironment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.")

Courts of appeals addressing the issue after Harris have used a "reasonable person" standard. See DeAngelis v. El Paso Mun. Polic e Officers Ass'n , 51 F. 3d 591, 594 (5th Cir.), cert. denied , 116 S. Ct. 473 (19 95); Fuller v. City of Oakland, Cal. , 47 F.3d 1522, 1527 (9th Cir
. 1995); Dey v. Colt Constr. & Dev. Co. , 28 F.3d 1 446, 1454 (7th Cir. 1994); King v. Hillen , 21 F.3d 1572, 1582 (Fed. Cir. 1994). Given the Suprem e Court's use of the "reasonable person" standard, we cannot find that the district court abused its discretion in using that standard in its jur y instruction.
Gillming argues that Instruction No. 9 erroneously required her t o assume the burden of proving that Simmons failed to take proper remedial act ion. Gillming argues that proper remedial action was an affirmativ e defense specifically raised by Simmons in its answer to her complaint.
Regard less of whether Simmons raised the issue as a defense i n answer ing Gillming's complaint, the issue of remedial action ha s consistentlybeen held to be an element that the plaintiff must prove to esta blisha prima facie case of hostile environment harassment. Se e Callanan v. Runyun , 75 F.3d 1293, 1296 (8th Cir. 1996) (part of prima faci e case that employer "`knew or should have known of the harassment and faile d to take proper remedi al action.'") (quoting Kopp , 13 F.3d at 269). Thus, the district

### -8-

court properly instructed the jury that Gillming bore the burden of provin g that Simmons failed to take proper remedial action.

III.
Gillming also argues that the district court erred in excludin g incidents of sexual harassment that she suffered prior to February 7, 1992
. The district court ha s broad discretion in ruling on the admissibility of proffered evidence, and we review the court's decision for an abuse of tha t discretion. Triton Corp. v. Hardrives, Inc. , 85 F.3d 343, 346 (8th Cir. 1996).
Gillming argues that the pre-February incidents should have bee n admitted as further proof of the hostile work environment because they wer e "lik e or reasonably related to" the incidents Gillming listed in he r complaint. We note that evidence of a hostile environment must not b e compar tmentalized, but must instead be based on the totality o f circumstances of the entire hostile work environment. See Burns v
. McGregor Elec. Indus., Inc. , 955 F.2d 559, 564 (8th Cir. 1992).

The pre-February incidents, however, were properly excluded fo r another reason. Gill ming was specifically asked by Simmons' attorneys in her dep osition about the first incident of sexual harassment that sh e rec alled happening. Gillming responded that the first incident she wa s complaining of was the incident with Guillermo on February 7, 1992
. Simmons contended at trial that it would be prej udiced by the introduction of ev idence that it did not know it must defend against. We agree tha t Simmons should not have to defend against such evidence. See Abbey v
. Cont rol Data Corp. , 933 F.2d 616, 621-22 (8th Cir. 1991) (defendant s rightlyclaimed prejudice from surprise testimony). "One of the primary objec tives of the Federal Rules of Civil Procedure is to eliminate th e element of `surprise' from the trial of civil ca ses." Nutt v. Black Hills Stage Lines, Inc. , 452 F.2d 480, 483 (8th Cir. 1971). Thus, the

### -9-

district court did not abuse its discretion in excluding the evidence.
Gillming also argues that the district court erred in excludin g evidence that Simmons failed to communicate its harassment policy to its non-English speaking Hispanic employees. Gillming attempted to introduce evidence at several points during the trial that Hispanic employees were the ones who threw chicken skins at her and call ed female employees names, that female employees were warned to stay away from Hispanic employees, an d that the Hispanic employees did not speak English. The district cour t excluded the evidence as lacking sufficient rele vance to the central issue of the case under Fed eral Rule of Evidence 402, and as unduly prejudicial under Federal Rule of Evidence 403. Although blanket evidentiar y exclus ions based on relevance grounds are not favored in discriminatio n cases, to be admissible the evidence must assist in developing a reasonabl e inference of discrimination. Callanan , 75 F.3d at 1297-98.

In some circumstances, evidence that an employer warns women t o cond uct themselves differently around certain employees may constitut e relevant evidence that the employer knew of harassing conduct from those employees. See Kopp , 13 F.3d at 268 & n.1. Evidence that a sexua l harassment policy was not communicated to employees in a way they coul d understand may also be relevant to prove that an employer did not tak e proper remedial action.

In this case, however, the district court did not abuse it s discretion in excluding the evidence as irreleva nt and unduly prejudicial. Gill ming argues that the proffered evidence "established that Hispani c males demonstrated a poor attitude toward women." This is precisely the
reason for which the Kopp court warns the evidence should not be used. Id
. at 268 n.1 (improper to draw any inference about harasser's motivation fro m his ethnic background). Gillming focused more on the nationality

### -10-

of t he employees than on the fact that they did not speak English. I n addition , the fact that Gillming had placed notices prior to tria l requesting informatio n "concerning possible Simmons employment of illegal aliens" led the court to believe the information would be admitted for an improper purpose. The court did not make the type of blanket exclusio n that concerned us in Callanan . We thus find no abuse of discretion in the court's exclusion of the evidence.
The judgment is affirmed.

A true copy.

Attest:

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