Bailey v. Runyon

• Decision Date: 08 February 1999
• Docket Number: No. 98-1030,98-1030
• Citation: 167 F.3d 466
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 225, 75 Empl. Prac. Dec. P 45,750 George E. BAILEY, Appellant, v. Marvin T. RUNYON, Jr., Postmaster General; United States Postal Service, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 466

167 F.3d 466

79 Fair Empl.Prac.Cas. (BNA) 225,

75 Empl. Prac. Dec. P 45,750

George E. BAILEY, Appellant, v. Marvin T. RUNYON, Jr., Postmaster General; United States Postal Service, Appellees.

No. 98-1030.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 21, 1998.

Decided Feb. 8, 1999.

Lonnie F. Bryan, Minneapolis, Minnesota, argued (B. Todd Jones, United States Attorney, and Mary Jo Madigan, Minneapolis, Minnesota, on the brief), for Appellees.

Before WOLLMAN, ROSS and BEAM, Circuit Judges.

ROSS, Circuit Judge.

George E. Bailey appeals from the district court's grant of judgment as a matter of law (JAML) in favor of his employer, the United States Postal Service, and Marvin T. Runyon, Postmaster General, (collectively "the Service"), on his sexual harassment claim under Title VII, 42 U.S.C. § 2000e et seq. (1994). We reverse and remand.

Viewed in a light most favorable to Bailey, the evidence at trial, and all reasonable inferences therefrom, reveals the following. Shortly after Bailey began working at a post office in March 1993, Bob Tylon, a co-worker, began asking Bailey if he would like to have a sexual relationship. Bailey said no, explaining he was not a homosexual. However, Tylon persisted in asking for a sexual relationship, including requests to perform oral sex on Bailey. In mid-April, Bailey informed his supervisor, Valerie Ellms, about Tylon's sexual advances. Ellms laughed and did nothing. Because Tylon persisted in asking for sexual favors, Bailey again talked to Ellms, who told him to point out Tylon to her if the conduct continued. Although Bailey later pointed out Tylon to Ellms, she again did nothing and the conduct continued.

On August 28, Tylon asked Bailey to read a note he had written. After Bailey refused, Tylon grabbed Bailey's crotch. When Bailey recoiled, Tylon again grabbed Bailey's crotch and requested to perform oral sex on him. Bailey was upset and left work. The next day Bailey told Ellms' supervisor, Vanessa Kellum, about the touching incident and that he was thinking of quitting because of Tylon's conduct. On September 6, Kellum told Bailey to fill out an incident report and that she would speak to Tylon. The next day, Kellum told Tylon to stay away from Bailey and warned that if his behavior continued, drastic action would follow. In a September 9 incident report, Bailey stated that since he began working at the post office Tylon had "constantly sexually harassed" him by "asking ... [to] perform sex on [him] ... and partake in other sexual activities." Bailey also stated that although he had reported the acts to his supervisor, it appeared that nothing had been done to "stop the pervasive sexual acts."

After Kellum's warning, Tylon had no contact with Bailey until a November 5 encounter in a restroom. At that time, Bailey was washing his hands when Tylon, who had been using a urinal, turned, without zipping his pants, to Bailey and told him of the discussion with Kellum. Bailey walked out of the restroom and on November 10 filed an incident report, noting the restroom encounter and the August 28 touching incident. After Brent Woodfeld, Tylon's supervisor, received a copy of the report, he instructed Tylon to have no contact with Bailey and warned if he did, he would be fired. Woodfeld also changed Tylon's work assignment so that he would not work with Bailey. Following Woodfeld's warning, Tylon had no further contact with Bailey.

Bailey claimed that Tylon's conduct caused him mental anguish, both at work and at home. Bailey also testified that since the harassment he had experienced anxiety attacks, had seen a counselor and was taking anti-depressants. On cross-examination, however, Bailey admitted that during the time he had been harassed by Tylon he had been seeing a doctor for a shoulder injury and had never mentioned the harassment. He further admitted that he did not see a counselor until June 1994 and that the counselor's notes did not mention the harassment, but only indicated that Bailey sought help for anxiety due to public speaking.

Pursuant to a special verdict form, the jury found that Bailey had been subjected to sexual harassment and that the Service had failed to act after receiving notice of the harassment, but that Bailey had not suffered damages. Bailey and the Service filed post-trial motions. The district court granted the Service's motion for JAML, holding that it had taken prompt remedial action to end the harassment, and denied Bailey's motion for JAML or in the alternative for a new trial on damages as moot.

On appeal, Bailey argues the district court erred in granting the Service's motion for JAML. Because "[t]he law places a high standard on overturning a jury verdict[,]" JAML "is proper '[o]nly when there is a complete absence of probative facts to support the conclusion reached' so that no reasonable juror could have found for the nonmoving party." Hathaway v. Runyon, 132 F.3d 1214, 1220 (8th Cir.1997) (quoting Ryther v. KARE 11, 108 F.3d 832, 845 (8th Cir.) (en banc), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997)). Although we review the district court's grant of JAML de novo, in so doing, we "must assume as proven all facts that [Bailey's] evidence tended to show, give h[im] the benefit of all reasonable inferences, and assume that all conflicts in the evidence were resolved in h [is] favor." Id. We will affirm the grant of JAML only "when 'all the evidence points in one direction and is susceptible to no reasonable interpretation supporting the jury verdict.' " Id. (quoting Mears v. Nationwide Mut. Ins. Co., 91 F.3d 1118, 1122 (8th Cir.1996)).

Because Bailey's claim involved harassment by a co-worker, he had to show actionable sexual harassment and that the Service " 'knew or should have known of the harassment and failed to take proper remedial action.' " Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir.1998) (quoting Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir.1993)); see also Faragher v. City of Boca Raton, 524 U.S. 775, ----, 118 S.Ct. 2275, 2289, 141 L.Ed.2d 662 (1998) (courts "uniformly judg[e] employer liability for co-worker harassment under a negligence standard"); Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir.1999) (noting Faragher did not disturb "negligence standard govern[ing] employer liability for co-worker harassment"); Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir.1998) (same). ¹ Bailey argues the court erred in holding as a matter of law that the Service took proper remedial action because his evidence was that Ellms did nothing after he reported Tylon's requests for sexual favors. Bailey also argues that Kellum's and Woodfeld's warnings to Tylon were inadequate, asserting that Tylon should have been fired, or at least suspended.

The Service correctly responds that Title VII "does not require an employer to fire a harasser." Davis v. Tri-State Mack Distributors, Inc., 981 F.2d 340, 343 (8th Cir.1992). "Rather, what an employer must do is to take 'prompt remedial action reasonably calculated to end the harassment.' " Id. (quoting Barrett v. Omaha Nat. Bank, 726 F.2d 424, 427 (8th Cir.1984)). The Service goes on to argue that its action was effective because after Kellum's warning, Tylon did not intentionally contact Bailey, and after Woodfeld's warning and change of Tylon's work assignment, there was no further contact. However, even if we assume that those actions were sufficient, the Service neglects the fact that Bailey testified that he had "complained to [Ellms] about [Tylon] long before the [Kellum] complaint, and that [Ellms] did nothing." Howard, 149 F.3d at 841. Thus, there is evidence supporting the jury's finding that the Service "knew of [Tylon's] conduct, but failed to put a stop to it promptly." Id.; see also Williamson v. City of Houston, 148 F.3d 462, 465 (5th Cir.1998) (city had notice of harassment before formal complaint because plaintiff had discussed co-worker's harassing behavior with supervisor who did nothing); Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1110 (8th Cir.1998) (although employer may have taken remedial action after last complaint it was liable because it failed to take action following prior complaints of harassment).

Apparently realizing the flaw in its remedial action argument, at oral argument the Service suggested that this case could be affirmed on the basis that Tylon's conduct before the August 28 touching incident did not constitute actionable sexual harassment. We disagree. "To be actionable, the sexual harassment must have been [objectively and subjectively] 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " Hathaway, 132 F.3d at 1221 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). " '[S]imple teasing ... offhand comments, and isolated incidents (unless extremely severe) will not amount to discriminatory changes in the terms and conditions of employment.' " Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1158 (8th Cir.1999) (quoting Faragher, 524 U.S. at ----, 118 S.Ct. at 2283). However, because "[t]here is no bright line between sexual harassment and merely unpleasant conduct[,] ... a jury's decision must generally stand." Hathaway, 132 F.3d at 1221;...