The Honorable Lawrence L. Piersol, United States District Judge for the District 1

of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 96-4115/97-1120

___________

Carolyn A. Coffman, *

 Cross- * Appeals from the United States

Appellant/Appellee, * District Court for the

 v. *

Tracker Marine, L.P., *

 Appellant/Cross- *

Appellee.

*

* Western District of Missouri.

*

*

___________

Submitted: November 21, 1997

 Filed: April 13, 1998

___________

Before FAGG and HANSEN, Circuit Judges, and PIERSOL, District Judge. 1

___________

HANSEN, Circuit Judge.

Tracker Marine, L.P., (Tracker Marine) appeals following a jury

verdict in favor of Carolyn A. Coffman on her retaliatory constructive

discharge claim under Title VII of the Civil Rights Act of 1964, arguing

that the district court erred in denying its motion for judgment as a

matter of law. Coffman cross-appeals, claiming the district
Other employees received some federal holidays off, but not Columbus Day,

2

Veterans’ Day, Martin Luther King, Jr.’s Birthday, and Presidents’ Day.

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court erred in failing to submit her claim for punitive damages to the

jury. We affirm in part, reverse in part, and remand.

I. Factual and Procedural Background

In 1986, Coffman began working for Tracker Marine, a boat

manufacturer, as an accounts payable clerk. She gradually was promoted to

new positions until she became the inventory control manager at Tracker

Marine’s Bolivar, Missouri, plant in January 1991. As part of her

negotiations with management regarding the inventory control manager

position, Coffman requested that she receive all federal holidays off with

pay. The exact nature of the agreement regarding these holidays is

2

unclear, but it appears that, at the very least, the parties reached an

informal understanding that Coffman would receive all federal holidays off

with pay, and she in fact took all of these holidays off with pay until

shortly before she resigned. As inventory control manager, Coffman was

responsible for controlling the level and flow of inventory, both raw

materials and finished goods, as it moved through the plant. She was also

responsible for supervising twenty-five employees.

In May 1992, Coffman made a complaint of sexual harassment to Ann

McNew, the personnel representative at the Bolivar plant, against Kenneth

Beckler, Coffman’s supervisor and the Bolivar plant manager. When Beckler

learned of the complaint, he self-reported the harassment claim to Michael

Rowland, a vice-president of human resources. Rowland conducted an

investigation and reviewed the results with Coffman. Rowland warned

Beckler that he was receiving a “final warning” and that termination would

result from: (1) another complaint of sexual harassment; (2) any

retaliation against Coffman; or (3) any physical contact between Beckler

and any employee.
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Following the harassment complaint, according to Coffman, Beckler

retaliated against her in various ways. Beckler removed significant job

responsibilities and functions from Coffman’s position as inventory control

manager, including the ordering of important raw materials, supervisory

responsibilities in the shipping department, and responsibility for

building materials. Coffman claimed that Beckler repeatedly placed his

hands into the air and backed away in an exaggerated manner in response to

Coffman’s presence in the hallway of the plant. Further, Beckler no longer

allowed Coffman to take all federal holidays off with pay. Beckler also

avoided verbal communication with Coffman and instead used electronic mail.

Finally, Beckler excluded Coffman from attendance at management meetings.

Coffman complained to McNew about some of Beckler’s behavior that

Coffman believed to be retaliatory, and McNew reported these complaints to

Rowland. Coffman also told Bill Gilkerson, the maintenance manager, that

Beckler was treating her differently after having filed her sexual

harassment complaint, and that Beckler was not allowing her to do her job.

It is unclear from the record precisely when these conversations took

place, although they were before Coffman resigned and after she brought the

sexual harassment complaint against Beckler.

On January 19, 1993, Coffman met with Beckler and McNew regarding

Coffman’s failure to receive paid time off for all federal holidays.

Beckler told Coffman she had misunderstood their original agreement and

that he did not have authority to allow her to take off all federal

holidays. Beckler then told Coffman she could no longer take off all

federal holidays. Following this meeting, Coffman met with Rowland and

submitted a letter of resignation, setting forth a list of alleged

retaliatory actions taken by Beckler. Rowland asked Coffman not to resign

and to allow him to investigate the matter and then get back to her. 

Following his investigation, Rowland called Coffman and told her that

he did not think there had been any retaliation, but that there was a

communication problem
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between Beckler and Coffman. Rowland informed Coffman that he thought the

problem could be resolved through the use of a facilitator. Coffman did

not want to use either of the two facilitators that Rowland recommended.

Instead, Coffman wanted to use an independent facilitator from outside the

company that she would not know. Rowland would not agree to bring in an

outside facilitator. Soon thereafter, Beckler gave Coffman a favorable

evaluation on a performance review. Shortly after this review, Coffman

resigned. 

On November 8, 1994, Coffman brought the present action against

Tracker Marine, alleging sexual harassment, retaliation for lodging a

sexual harassment complaint, and constructive discharge, all in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a),

2000e-3(a) (1994). Coffman also alleged a violation of the Equal Pay Act,

29 U.S.C. § 206(d). On September 23, 1996, the district court granted

summary judgment in favor of Tracker Marine on Coffman’s sexual harassment

claim, ruling that the conduct complained of was not so “severe and

pervasive as to create an objectively hostile work environment,” and that

Tracker Marine had taken prompt and remedial action reasonably likely to

stop the harassment. (Appellant’s Supp. App. at 8, 11.) Coffman does not

appeal that ruling. The court denied Tracker Marine’s summary judgment

motion on the retaliation claim, finding Coffman had made out a prima facie

case and that there was a jury issue on whether Tracker Marine’s proffered

legitimate reasons were pretextual. The court also denied Tracker Marine’s

motion for summary judgment on the constructive discharge claim, ruling

“the crux of the constructive discharge claim depends on [the] same factual

issues” as the retaliation claim. (Appellant’s Supp. App. at 13.) The

court further denied summary judgment on the Equal Pay Act claim.

The case proceeded to trial on October 7, 1996. On October 11, 1996,

the jury returned a verdict for Tracker Marine on the Equal Pay Act claim

and for Coffman on the retaliatory constructive discharge claim. The jury

awarded Coffman $15,000 for back pay, $5,000 for emotional distress, and

$5,000 for medical expenses. No punitive
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damages were awarded because the court had previously denied Coffman’s

request to instruct the jury on such damages. Following the verdict,

Tracker Marine filed a motion for judgment as a matter of law or,

alternatively, for a new trial. The district court denied the motion.

Tracker Marine appeals this ruling, and Coffman cross-appeals the failure

to instruct the jury on punitive damages.

II. Analysis

A. Tracker Marine’s Appeal

1. Adverse Employment Action as a Result of the Sexual Harassment

Complaint

Tracker Marine argues that the district court erred in denying its

motion for a judgment as a matter of law on Coffman’s retaliation claim

because Coffman presented insufficient evidence that she suffered an

adverse employment action as a result of her sexual harassment complaint.

We review de novo the district court’s denial of Tracker Marine’s motion

for judgment as a matter of law. Gartman v. Gencorp, Inc., 120 F.3d 127,

129 (8th Cir. 1997). “We view the evidence in the light most favorable to

the verdict and will not reverse a jury's verdict for insufficient evidence

unless we conclude that no reasonable juror could have returned a verdict”

for Coffman on this claim. Deneen v. Northwest Airlines, Inc., 132 F.3d

431, 438 (8th Cir. 1998) (internal quotations omitted). 

 

There are three elements of a prima facie case in a Title VII

retaliation claim: (1) the plaintiff engaged in statutorily protected

activity; (2) the plaintiff suffered an adverse employment action; and (3)

this adverse employment action occurred because the plaintiff engaged in

statutorily protected activity. See Evans v. Kansas City, Mo. Sch. Dist.,

65 F.3d 98, 100 (8th Cir.1995), cert. denied, 116 S. Ct. 1319 (1996). The

defendant may then rebut the plaintiff's prima facie case by advancing a

legitimate, nonretaliatory reason for the adverse employment action. See

Ruby v. Springfield R-12
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Pub. Sch. Dist., 76 F.3d 909, 911 (8th Cir.1996). If the defendant makes

this showing, the plaintiff must show that the defendant's proffered reason

was a pretext for illegal retaliation. Id. Coffman has clearly met the

first element—she engaged in statutorily protected activity by making a

sexual harassment complaint against Beckler. Tracker Marine contends that

there is insufficient evidence to meet the second and third elements.

We first determine whether Coffman suffered an adverse employment

action after her harassment complaint. Although “actions short of

termination may constitute adverse actions within the meaning of the

statute,” not everything that makes an employee unhappy is an actionable

adverse employment action. Smith v. St. Louis Univ., 109 F.3d 1261, 1266

(8th Cir. 1997). Instead, the action must have had some materially adverse

impact on Coffman’s employment terms or conditions to constitute an adverse

employment action. See Ledergerber v. Strangler, 122 F.3d 1142, 1144 (8th

Cir. 1997). 

Our review of the record leads us to conclude that the jury was

presented with ample evidence upon which it could find Coffman suffered an

adverse employment action. Coffman’s claim that she was not permitted to

take all the federal holidays off work after she made her harassment

complaint is supported by her own testimony and that of a coworker. The

denial of these vacation days easily qualifies as an adverse employment

action because it was a material change in one of Coffman’s existing

employment benefits. See id. Based on this action alone, the jury had

sufficient evidence to find Coffman suffered an adverse employment action.

 

There was also evidence to support Coffman’s claim that Beckler would

back away from her in the hallway in an exaggerated manner, causing

embarrassment to Coffman. Both Coffman and others testified about this

behavior. Coffman also had her duties at work changed, including the loss

of her responsibility for ordering coil and extrusion, important raw

materials in the manufacturing of boats at the Bolivar plant.
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These ordering duties represented a substantial part of Coffman’s job as

inventory control manager. When Tracker Marine stripped Coffman of her

duties as supervisor of the shipping department, the number of employees

she supervised was reduced from twenty-five to eight. Coffman testified

that Beckler began to communicate with her more by electronic mail and

worked with her less on a one-to-one basis. While Beckler may have done

so out of a sense of self-preservation and to provide documentation for his

contacts with someone who had charged him with sexual harassment, according

to Coffman, these changes in Beckler’s communications with her hampered her

ability to do her job. There was also evidence that Tracker Marine

excluded Coffman from some management meetings that, as inventory control

manager, she would have been expected to attend. Taken together, these

actions, as well as the denial of vacation time previously discussed, show

Coffman’s employment was adversely affected in a material way. See Burns

v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992) (court

looks at combined effect of the employer’s actions to determine if there

was discrimination).

We next review the record to see if there is sufficient evidence to

support the jury’s finding that the adverse employment action was the

result of Coffman’s sexual harassment complaint, again viewing the evidence

in the light most favorable to the verdict. Deneen, 132 F.3d at 438. We

conclude that there is. The person making the adverse employment

decisions, Beckler, was the same person whose behavior had been the subject

of Coffman’s harassment complaint. There was evidence that Beckler’s

demeanor and his relationship with Coffman changed after the complaint.

His exaggerated reactions to Coffman in the hallway support an inference

of hostility towards Coffman in response to her complaint. This evidence

could well have been used by the jury to draw an inference that Beckler’s

actions in changing Coffman’s duties and denying her vacation time had been

taken in response to the complaint. The timing of Beckler’s actions in

relation to the harassment complaint, when considered along with the other

evidence of retaliatory motive, also supports a reasonable inference that

his actions were motivated by the complaint. See O’Bryan v. KTIV
Although the parties dispute whether such action prevents employer liability for 3

a retaliation claim, we find it unnecessary to resolve this issue because the jury’s

finding that Tracker Marine did not take prompt and appropriate remedial action on her

retaliation claim is supported by substantial evidence.

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Television, 64 F.3d 1188, 1194-95 (8th Cir. 1995). Finally, the jury

easily could have disbelieved Tracker Marine’s proffered legitimate

reasons for the actions and found they were pretextual.

2. Prompt and Appropriate Remedial Action by Tracker Marine

Tracker Marine next claims that there was insufficient evidence to

support the jury’s finding that it did not take prompt and remedial action

to end the retaliation against Coffman. For purposes of this appeal, we

assume without deciding that prompt and appropriate remedial action

prevents employer liability for a Title VII retaliation claim. 

3

Our review of the record in the light most favorable to the verdict,

see Deneen, 132 F.3d at 438, leads us to conclude that there is sufficient

evidence to support the jury’s finding that Tracker Marine did not take

prompt and appropriate remedial action designed to resolve Coffman’s

retaliation complaint. We first note that this issue involves a fact-based

inquiry into whether Tracker Marine’s response to Coffman’s retaliation

complaints was prompt and appropriate, an issue that often must be decided

by the jury. See Smith, 109 F.3d at 1265 (noting that the promptness and

appropriateness of an employer’s response to a Title VII complaint was

subject to a factual dispute that should be resolved by the jury). Coffman

talked with McNew about the problems she was having with Beckler and told

her she thought they were the result of retaliation for the prior

harassment complaint. Coffman testified that she cried during these

meetings with McNew. Although Coffman did not tell McNew about all of the

retaliatory actions, McNew testified that she informed Rowland of the

problems
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Coffman did report. Rowland claimed no knowledge of these complaints and

took no action to correct the situation. In deciding which witness to

credit, the jury could reasonably conclude that Rowland had been informed

of the complaints and that he ignored them and did not take appropriate

action to resolve them. When Rowland was later confronted with Coffman’s

letter of resignation, he did take some action. He investigated the

problem, but he concluded the acts were not retaliatory and suggested using

a facilitator to solve what he viewed as a communication problem between

Coffman and Beckler. The jury did not have to accept this as an

appropriate response, especially since the jury found there had been

retaliation rather than merely a communication problem.

3. Constructive Discharge

Tracker Marine next argues that the evidence is insufficient to

support the jury’s finding that Coffman had been constructively discharged.

A plaintiff must show more than just a Title VII violation by her employer

in order to prove that she has been constructively discharged. See Tidwell

v. Meyer’s Bakeries, Inc., 93 F.3d 490, 495 (8th Cir. 1996) (holding that

although there was evidence of discrimination by the employer based on

race, there was insufficient evidence to support a finding that the

employer had constructively discharged the plaintiff). Thus, even though

there is sufficient evidence to support the jury’s findings of retaliatory

adverse employment action, we must independently examine the evidence to

see if it is sufficient to support the jury’s finding of constructive

discharge. In so doing, we once again view the record in the light most

favorable to the verdict. Deneen, 132 F.3d at 438. 

To establish a claim for constructive discharge, the plaintiff must

show that the employer “deliberately create[d] intolerable working

conditions with the intention of forcing the [plaintiff] to quit.”

Tidwell, 93 F.3d at 494 (citing Johnson v. Bunny Bread Co., 646 F.2d 1250,

1256 (8th Cir. 1981)). “The plaintiff can satisfy the intent requirement

by demonstrating that [she] quit as a reasonably foreseeable consequence
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of the employer's discriminatory actions.” Id. (citing Hukkanen v.

International Union of Operating Eng'rs, 3 F.3d 281, 285 (8th Cir.1993)).

The plaintiff must establish that “a reasonable person in her situation

would find the working conditions intolerable. ” Gartman, 120 F.3d at 130.

Thus, the “intolerability of working conditions is judged by an objective

standard, not the employee’s subjective feelings.” Id. (internal

quotations and alterations omitted). 

 We have articulated further principles for use in resolving

constructive discharge claims that are relevant to this case.

“Dissatisfaction with a work assignment is, as a matter of law, normally

not so intolerable as to be a basis for constructive discharge.” Tidwell,

93 F.3d at 496 (citing Carter v. Ball, 33 F.3d 450, 459 (4th Cir.1994)

(“Dissatisfaction with work assignments, a feeling of being unfairly

criticized, or difficult or unpleasant working conditions are not so

intolerable as to compel a reasonable person to resign.”)). Also, we have

stressed that “[t]o act reasonably, an employee has an obligation not to

assume the worst and not to jump to conclusions too quickly.” Id. at 494

(citing West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir.1995)).

If an employee quits without giving her employer a reasonable chance to

work out a problem, then she has not been constructively discharged. Id.

The rationale underlying these rules is that “‘society and the policies

underlying Title VII will be best served if, wherever possible, unlawful

discrimination is attacked within the context of existing employment

relationships.’” West, 54 F.3d at 498 (quoting Bourque v. Powell Elec.

Mfg. Co., 617 F.2d 61, 66 (5th Cir. 1980)); see also Perry v. Harris

Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997) (“unless conditions are

beyond ‘ordinary’ discrimination, a complaining employee is expected to

remain on the job while seeking redress.”).

Our review of the evidence convinces us that Coffman failed to present

sufficient evidence for a jury to find that a reasonable person in

Coffman’s position would have found that the conditions of her employment

were intolerable. Coffman was not an employee who felt she had no place

to turn when faced with unlawful discrimination.
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She knew that she could report any allegations of retaliatory action

directly to McNew and up the chain of responsibility to Rowland. When

Coffman threatened to quit, Rowland tried to prevent her resignation and

attempted to solve the problems. Although his proposed solution may not

have been prompt and appropriate when viewed through the 20/20 lens of

hindsight, Coffman had an obligation to not jump to the conclusion that the

attempt would not work and that her only reasonable option was to quit.

See Tidwell, 93 F.3d at 494. Nor did she have the right to dictate how

Tracker Marine would try to solve the problem by insisting on an “outside”

facilitator. This obligation is particularly appropriate here because

Rowland had taken corrective action on Coffman’s prior sexual harassment

complaint, and Coffman had little reason to believe that her retaliation

complaint would not lead to similar corrective action by Tracker Marine.

Her most recent performance review given to her by the retaliator had been

favorable. There is also no evidence that the retaliatory acts were

intended by Tracker Marine to force Coffman to quit, or that it was

reasonably foreseeable that she would quit as a consequence of the

retaliation. See id.; Bunny Bread, 646 F.2d at 1256. The evidence here

all points the other way—when Coffman threatened to quit, Tracker Marine

tried to take action to prevent her resignation.

“What is missing from this catalogue of evidence is any indication

that [Coffman] faced objectively intolerable working conditions. While the

conditions under which [Coffman] worked may have been unpleasant and tinged

with [retaliatory] acts, they do not create an [objectively] intolerable

atmosphere” that forced Coffman to resign. Tidwell, 93 F.3d at 497. We

hold that a jury could not reasonably conclude that Coffman was

constructively discharged. The district court erred in not granting

Tracker Marine’s judgment as a matter of law on the constructive discharge

component of Coffman’s retaliation claim.

Because there is sufficient evidence for the jury’s finding that

Tracker Marine violated Title VII by taking adverse employment actions

against Coffman as a result of her prior harassment complaint and

insufficient evidence for Coffman’s constructive
Neither party challenges these instructions or the verdict director. 4

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discharge claim, we must determine whether this affects the damages awarded

to Coffman. Pursuant to the instructions and verdict director, the jury,

after finding Coffman had been constructively discharged, awarded damages

to Coffman by attributing specific amounts to the categories of back pay,

emotional distress, and medical treatment. The jury awarded Coffman

4

$15,000 in back pay, $5,000 for emotional distress, and $5,000 for medical

treatment. Alternatively, the instructions and verdict director provided

that if the jury found that Tracker Marine retaliated against Coffman but

had not constructively discharged her, then the jury should only award

damages for emotional distress and medical treatment.

Under these circumstances, we can uphold a part of the jury’s damage

award and avoid the necessity of a new trial. We have concluded that the

evidence supports the jury finding that Coffman was retaliated against but

does not support a finding that she was constructively discharged. Under

this scenario, the jury instructions expressly required the jury to award

damages to Coffman for the categories of emotional distress and medical

treatment. We know the amount of damages the jury attributed to these two

categories, and we affirm those determinations. Thus, we remand to the

district court for the entry of an order reflecting that judgment is

entered in favor of Coffman on the retaliation claim only and reducing the

damage award by $15,000, the amount attributed by the jury to back pay.

In all other respects, we affirm the judgment of the district court on

Tracker Marine’s appeal.

 

B. Coffman’s Cross-appeal

Coffman argues on cross-appeal that the district court erred in not

submitting her claim for punitive damages to the jury. We reject this

argument.
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Under Title VII, punitive damages may be awarded if an employer is

found to have engaged in unlawful employment discrimination “with malice

or with reckless indifference to the federally protected rights” of the

plaintiff. 42 U.S.C. § 1981a(b)(1). The evidence here does not support a

finding that Tracker Marine acted with reckless indifference to the

federally protected rights of Coffman. Although the jury found Tracker

Marine did not respond promptly and appropriately to Coffman’s retaliatory

complaints, Tracker Marine did respond later and attempted to solve what

it perceived as the problem. This is not a case where an employer

repeatedly ignored complaints about unlawful discrimination. Cf. Kimzey

v. Wal-Mart Stores, Inc., 107 F.3d 568, 576 (8th Cir. 1997). There is

simply an inadequate showing of malice or reckless indifference by Tracker

Marine toward Coffman’s Title VII rights to have required the submission

of a punitive damages instruction to the jury.

III. Conclusion

Accordingly, we reverse and remand this case to the district court for

the entry of an order reflecting that judgment is entered in favor of

Coffman on the retaliation claim and reducing the damage award by $15,000.

In all other respects, we affirm the judgment of the district court.

A true copy.

Attest:

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