## 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.

Tra cker Marine, L.P., (Tracker Marine) appeals following a jur y verdict in favor of Carolyn A. Coffman on her retaliatory constructiv e discharge claim under Title VII of the Civil Rights Act of 1964, arguing tha t 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.
-2- court erred in failing to submit her claim for punitive damages to th e jury. We affirm in part, reverse in part, and remand.
I. Factual and Procedural Background

In 1986, Coffman began working for Tracker Marine, a boa t manufacturer, as an accounts payable clerk. She gradually was promoted to
new positions until she became the inventory control manager at Tracke r Mar ine’s Bolivar, Missouri, plant in January 1991. As part of he r
ne gotiations with management regarding the inventory control manage r position, Coffman requested that she receive all federal holidays off with pay. The exact nature of the agreement regarding these holidays i s

2 unclear, but it appears that, at the very least, the parties reached a n informal understanding that Coffman would receiv e all federal holidays off with pay, and she in fact took all of these holidays off with pay unti l sho rtlybefore she resigned. As inventory control manager, Coffman wa s respons ible for controlling the level and flow of inventory, both ra w materials and finished goods, as it moved throug h the plant. She was also responsible for supervising twenty-five employees.

In May 1992, Coffman made a complaint of sexual harassment to An n McNew, the personnel representative at the Bolivar plant, against Kenneth Beckler, Coffman’s supervisor and the Bolivar pl ant manager. When Beckler learned of the complaint, he self-reported the h arassment claim to Michael Rowlan d, a vice-president of human resources. Rowland conducted a n invest igation and reviewed the results with Coffman. Rowland warne d Beckler that he was receiving a “final warning” and that termination would result from: (1) another complaint of sexual harassment; (2) an y retaliation against Coffman; or (3) any physical contact between Beckler and any employee.

## -3- Fol lowing the harassment complaint, according to Coffman, Beckle r retaliated against her in various ways. Beckler removed significant job responsibilities and functions from Coffman’s position as inventory contro l manager, including the ordering of important raw materials, supervisor y responsibilities in the shipping department, and responsibility fo r buildi ng materials. Coffman claimed that Beckler repeatedly placed hi s hands into the air and backed away in an exagger ated manner in response to Coffman’s presence in the hallway of the plant. Further, Beckler no longe r allowed Coffman to take all federal holidays off with pay. Beckler also avoided verbal communication with Coffman and instead used electronic mail

. Finally, Beckler excl uded Coffman from attendance at management meetings.

Coffman complained to McNew about some of Beckler’s behavior tha t Coffman believed to be retaliatory, and McNew re ported these complaints to Rowland. Coffman als o told Bill Gilkerson, the maintenance manager, that Beckle r was treating her differently after having filed her sexua l harassment complaint, and that Beckler was not a llowing her to do her job. It is u nclear from the record precisely when these conversations too k place, although they were before Coffman resigned and after she brought th e sexual harassment complaint against Beckler.

On Ja nuary 19, 1993, Coffman met with Beckler and McNew regardin g Coff man’s failure to receive paid time off for all federal holidays

. Beckle r told Coffman she had misunderstood their original agreement an d that he did not have authority to allow her to take off all federa l hol idays. Beckler then told Coffman she could no longer take off al l fed eral holidays. Following this meeting, Coffman met with Rowland an d submitted a letter of resignation, setting forth a list of allege d retaliatory actions taken by Beckler. Rowland a sked 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 he r that he did no t think there had been any retaliation, but that there was a communication problem

## -4-

between Beckler and Coffman. Rowland informed C offman that he thought the problemcould 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 fa cilitator from outside the companythat she would not know. Rowland would not agree to bring in an outside facilitator. Soon thereafter, Beckler gave Coffman a favorable
eva luation on a performance review. Shortly after this review, Coffma n resigned.

On November 8, 1994, Coffman brought the present action agains t Tracker Marine, alleging sexual harassment, retaliation for lodging a sexual harassment com plaint, 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). Co ffman also alleged a violation of the Equal Pay Act, 29 U.S.C. § 206(d). On September 23, 1996, the district court grante d summary judgment in favor of Tracker Marine on C offman’s sexual harassment claim, ru ling that the conduct complained of was not so “severe an d pervasive as to creat e 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 app eal that ruling. The court denied Tracker Marine’s summary judgmen t motion on the retaliation claim, finding Coffman had made out a prima faci e 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, rulin g “the crux of the constructive discharge claim depends on [the] same factua l issues” a s the retaliation claim. (Appellant’s Supp. App. at 13.) Th e 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 v erdict 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

## -5-

dam ages were awarded because the court had previously denied Coffman’ s req uest to instruct the jury on such damages. Following the verdict , Tracke r Marine filed a motion for judgment as a matter of law or , alternati vely, for a new trial. The district court denied the motion

. Tracke r 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

Tra cker Marine argues that the district court erred in denying it s motion for a judgment as a matter of law on Coffman’s retaliation clai m because Coffman presented insufficient evidence that she suffered a n advers e employment action as a result of her sexual harassment complaint. We review de novo the district court’s denial of Tracker Marine’s motio n for ju dgment as a matter of law. Gartman v. Gencorp, Inc. , 120 F.3d 127, 129 (8th Cir. 1997). “We view th e evidence in the light most favorable to the verdict and will not reverse a jury's verdict for insuff icient evidence unless we conclude that no reason able juror could have returned a verdict” for Coffm an on this claim. Deneen v. Northwest Airlines, Inc. , 132 F.3 d 431, 438 (8th Cir. 1998) (internal quotations omitted).

There are three elements of a prima facie case in a Title VI I retali ation claim: (1) the plaintiff engaged in statutorily protecte d activity; (2) the plaintiff suffe red an adverse employment action; and (3) thi s adverse employment action occurred because the plaintiff engaged i n statutorily protected activity. See Evans v. Kansas City, Mo. Sch. Dist. , 65 F.3d 98, 100 (8th Cir.1995), c ert. denied , 116 S. Ct. 1319 (1996). The defendant may then rebut the plaintiff's prima facie case by advancing a legiti mate, nonretaliatory reason for the adverse employment action. See Ruby v. Springfield R-12

## -6-

Pub. S ch. Dist. , 76 F.3d 909, 911 (8th Cir.1996). If the defendant makes this showing, the plaintiff must show that the defendant's p roffered reason
was a pr etext for illegal retaliation. Id. Coffman has clearly met th e fir st element—she engaged in statutorily protected activity by making a sexual harassment complaint again st Beckler. Tracker Marine contends that there is insufficient evidence to meet the second and third elements.

We f irst determine whether Coffman suffered an adverse employmen t
ac tion after her harassment complaint. Although “actions short o f ter mination may constitute adverse actions within the meaning of th e statute,” not everything that makes an employee unhappy is an actionabl e advers e employment action. Smith v. St. Louis Univ. , 109 F.3d 1261, 1266 (8th Cir. 1997). Instead, the action must have had some mat erially adverse impact on Coffman’s employment terms or conditions to consti tute an adverse employment action. See Ledergerb er v. Strangler , 122 F.3d 1142, 1144 (8th Cir. 1997).

Our re view of the record leads us to conclude that the jury wa s presented with ample evidence upo n which it could find Coffman suffered an advers e employment action. Coffman’s claim that she was not permitted to take all the federal holidays off work after she made her harassmen t complain t is supported by her own testimony and that of a coworker. Th e denial o f these vacation days easily qualifies as an adverse employmen t action b ecause it was a material change in one of Coffman’s existin g employmen t benefits. See id . Based on this action alone, the jury ha d sufficient evidence to find Coffm an suffered an adverse employment action.
There was also evidence to support Coffman’s cla im that Beckler would ba ck away from her in the hallway in an exaggerated manner, causin g embarras sment to Coffman. Both Coffman and others testified about thi s behavior. Coffman also had her d uties at work changed, including the loss of her responsibility for ordering coil and extrusion, important ra w materials in the manufacturing of boats at the Bolivar plant.

## -7-

These ordering duties represented a substantial part of Coffman’s job a s inventor ycontrol manager. When Tracker Marine stripped Coffman of he r duties as supervisor of the shipping department, the number of employee s she supervised was reduced from twenty-five to eight. Coffman testifie d that Beck ler began to communicate with her more by electronic mail an d worked w ith her less on a one-to-one basis. While Beckler may have don e so out of a sense of self-preservation and to provide docume ntation for his contacts with someone who had charged him with sexual harass ment, according to Coffman, these changes in Beckler’s communications with h er hampered her abilityto do her job. There was also evidence that Tracker Marin e exclud ed Coffman from some management meetings that, as inventory control
mana ger, she would have been expected to attend. Taken together, thes e actions, as well as the denial of vacation time previously discussed, show Coffma n’s employment was adversely affected in a material way. See Burns
v. McGreg or Elec. Indus., Inc. , 955 F.2d 559, 564 (8th Cir. 1992) (cour t looks at c ombined effect of the employer’s actions to determine if ther e was discrimination).

We next review the record to see if there is sufficient evidence to
su pport the jury’s finding that the adverse employment action was th e result of Coffman’s sexual harassment complaint, again viewi ng 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 employmen t decisions, Beckler, was the same person whose behavior had b een the subject of Coffman’s harassment complaint. There was evidence that Beckler’ s dem eanor and his relationship with Coffman changed after the complaint

. His exaggerated reactions to Coffman in the hallway support an inferenc e of hos tility 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 vacatio n time had been taken in response to the complaint. The timing of Beckler’s actions i n relation to the harassment compla int, when considered along with the other eviden ce 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 appropria te remedial action on her retaliation claim is supported by substantial evidence.
-8- Tel evision , 64 F.3d 1188, 1194-95 (8th Cir. 1995). Finally, the jur y easily could have disbelieved Tracker Marine’s proffered legitimat e reasons for the actions and found they were pretextual.

2. Prompt and Appropriate Remedial Action by Tracker Marine

Tracke r Marine next claims that there was insufficient evidence t o support the jury’s finding that i t did not take prompt and remedial action to end th e retaliation against Coffman. For purposes of this appeal, w e
assu me without deciding that prompt and appropriate remedial actio n prevents employer liability for a Title VII retaliation claim. 3

Our review of the rec ord in the light most favorable to the verdict,
see Deneen , 132 F.3d at 438, lead s us to conclude that there is sufficient evid ence to support the jury’s finding that Tracker Marine did not tak e prompt and appropriate remedial action designed to resolve Coffman’ s retaliation complaint. We first note that this issue involv es a fact-based inquiryinto whether Tracker Marine’s response to Coffman’s retaliatio n complaints was prompt and appropr iate, an issue that often must be decided by the jury. See Smith , 109 F.3d at 1265 (noting that the promptness and appro priateness of an employer’s response to a Title VII complaint wa s subject to a factual dispute that should be resolved by the jury). Coffman talkedwith McNew about the problems she was having with Beckler and told her she thought they were the result of retaliation for the prio r har assment complaint. Coffman testified that she cried during thes e meetings with McNew. Although Co ffman did not tell McNew about all of the ret aliatoryactions, McNew testified that she informed Rowland of th e problems

## -9-

Coffma n did report. Rowland claimed no knowledge of these complaints and too k no action to correct the situation. In deciding which witness t o credit, the jury could reasonably conclude that Rowland had been informed of the complaints and that he ignored them and did not take appropriat e actionto resolve them. When Rowland was later confronted with Coffman’s letter o f resignation, he did take some action. He investigated th e problem, but he concluded the acts were not retaliatory and suggested using
a facilita tor to solve what he viewed as a communication problem betwee n Cof fman and Beckler. The jury did not have to accept this as a n app ropriate response, especially since the jury found there had bee n retaliation rather than merely a communication problem.
3. Constructive Discharge

Tracke r Marine next argues that the evidence is insufficient t o support the jury’s finding that Coffman had been constructiv ely discharged. A plaintiff must show more than j ust a Title VII violation by her employer in order to prove that she has been constructively discharge d. See Tidwell v. Mey er’s Bakeries, Inc. , 93 F.3d 490, 495 (8th Cir. 1996) (holding that altho ughthere was evidence of discrimination by the employer based o n race, there was insufficient evidence to support a finding that th e employ er had constructively discharged the plaintiff). Thus, even though there is sufficient evidence to s upport the jury’s findings of retaliatory adv erse employment action, we must independently examine the evidence t o
see if it is sufficient to support the jury’s finding of constructiv e dischar ge. In so doing, we once again view the record in the light mos t 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 workin g
con ditions with the intention of forcing the [plaintiff] to quit. ” Tidwell , 93 F.3d at 494 (citing J ohnson v. Bunny Bread Co ., 646 F.2d 1250, 1256 (8th Cir. 1981)). “The plaintiff can satisfy the intent requiremen t by demonstrating that [she] quit as a reasonably foreseeable consequence

## -10-

of the employer's discriminatory actions.” Id. (citing Hukkanen v

. Intern ational Union of Operating Eng'rs , 3 F.3d 281, 285 (8th Cir.1993)). The plai ntiff must establish that “a reasonable person in her situatio n would find the working conditions intolerable. ” Gartman , 120 F.3d at 130. Thus, the “intolerability of working conditions is judged by an objective st andard, not the employee’s subjective feelings.” Id. (interna l quotations and alterations omitted).

We ha ve articulated further principles for use in resolvin g constr uctive discharge claims that are relevant to this case

. “Dissatisf action with a work assignment is, as a matter of law, normall y 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 unfairl y cri ticized, or difficult or unpleasant working conditions are not s o intolerable as to compel a reason able person to resign.”)). Also, we have stressed t hat “[t]o act reasonably, an employee has an obligation not t o
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 a n employee quits without giving her employer a reasonable chance t o work o ut a problem, then she has not been constructively discharged. Id. The rati onale underlying these rules is that “‘society and the policie s underlying Title VII will be best served if, wherever possible, unlawfu l discrimination is attacked within the context of existing employmen t rela tionships.’” West , 54 F.3d at 498 (quoting Bourque v. Powell Elec

. Mfg. Co. , 61 7 F.2d 61, 66 (5th Cir. 1980)); see also Perry v. Harri s Chernin, Inc. , 126 F.3d 1010, 101 5 (7th Cir. 1997) (“unless conditions are beyond ‘ordinary’ discrimination, a complaining employee is expected t o remain on the job while seeking redress.”).

Our review of the evidence convinces us that Coffman failed to presen t suffici ent evidence for a jury to find that a reasonable person i n Coffma n’s position would have found that the conditions of her employment
were int olerable. Coffman was not an employee who felt she had no plac e to turn when faced with unlawful discrimination.

## -11-

She knew that she could report any allegations of retaliatory actio n dir ectlyto McNew and up the chain of responsibility to Rowland. Whe n Coffman threatened to quit, Rowland tried to prevent her resignation an d attempted to solve the problems. Although his proposed solution may no t have been prompt and appropriate when viewed through the 20/20 lens o f hindsight, Coffman had an obligation to not jump to the conc lusion 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 ho w Tracker Marine would try to solve the problem by insisting on an “outside” fac ilitator. This obligation is particularly appropriate here becaus e Row land had taken corrective action on Coffman’s prior sexual harassmen t complaint, and Coffman had little reason to believe that her retaliatio n complaint would not lead to similar corrective action by Tracker Marine

. Her most recent performance revie w given to her by the retaliator had been favorabl e. There is also no evidence that the retaliatory acts wer e intended by Tracker Marine to force Coffman to quit, or that it wa s
rea sonablyforeseeable that she would quit as a consequence of th e retaliat ion. See id. ; Bunny Bread , 646 F.2d at 1256. The evidence her e all points the other way—when Coffman threatened to quit, Tracker Marin e tried to take action to prevent her resignation.

“Wh at is missing from this catalogue of evidence is any indicatio n that [Coffman] faced objectively intolerable working conditi ons. While the conditions under which [Coffman] worked may have been unplea sant and tinged wit h[retaliatory] acts, they do not create an [objectively] intolerabl e atmosphe re” that forced Coffman to resign. Tidwell , 93 F.3d at 497. W e hold that a jury could not reasonably conclude that Coffman wa s
con structivelydischarged. The district court erred in not grantin g Tracker Marine’s judgment as a ma tter of law on the constructive discharge component of Coffman’s retaliation claim.

Becaus e there is sufficient evidence for the jury’s finding tha t Tra cker Marine violated Title VII by taking adverse employment action s against Coffman as a result of her prior harassment complaint an d insufficient evidence for Coffman’s constructive

## Neither party challenges these instructions or the verdict director. 4


## -12- discharge claim, we must determine whether this affects the damages awarded to Cof fman. Pursuant to the instructions and verdict director, the jury, after finding Coffman had been constructively discharged, awarded damages to Cof fman by attributing specific amounts to the categories of back pay, emoti onal distress, and medical treatment. The jury awarded Coffma n 4 $15,000 in back pay, $5,000 for e motional distress, and $5,000 for medical treatm ent. Alternatively, the instructions and verdict director provided that i f the jury found that Tracker Marine retaliated against Coffman but had n ot constructively discharged her, then the jury should only awar d damages for emotional distress and medical treatment.

Under these circumsta nces, 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 findin g that Coffman was retaliated against but does n ot support a finding that she was constructively discharged. Under this s cenario, the jury instructions expressly required the jury to award damages to Coffman for the categories of emotional distress and medica l treatment. We know the amount of damages the jury attributed to these two cate gories, and we affirm those determinations. Thus, we remand to th e district court for the entry of an order reflecting that judgment i s entered in favor of Coffman on th e 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 o n Tracker Marine’s appeal.
B. Coffman’s Cross-appeal

Coffman argues on cross-appeal that the district court erred in not sub mitting her claim for punitive damages to the jury. We reject thi s argument.

## -13- Under Title VII, punitive damages may be awarded if an employer i s fou nd to have engaged in unlawful employment discrimination “with malic e
or with reckless indifference to the federally protected rights” of th e plaint iff. 42 U.S.C. § 1981a(b)(1). The evidence here does not support a fin ding that Tracker Marine acted with reckless indifference to th e federall yprotected rights of Coffman. Although the jury found Tracke r Marine did not respond promptly a nd appropriately to Coffman’s retaliatory complaints, Tracker Marine did respond later and attempted to solve wha t it perceived as the problem. This is not a case where an employe r repea tedlyignored complaints about unlawful discrimination. Cf. Kimze y
v. Wal-Mar t Stores, Inc. , 107 F.3d 568, 576 (8th Cir. 1997). There i s simply an inadequate showing of m alice or reckless indifference by Tracker Marine toward Coffman’s Title VII rights to have required the submissio n of a punitive damages instruction to the jury.

III. Conclusion
Accordingly, we reverse and remand this case to the district court fo r the en try of an order reflecting that judgment is entered in favor o f 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.