Phillips v. Taco Bell Corp.

• Citation: 156 F.3d 884
• Decision Date: 01 October 1998
• Docket Number: No. 97-4245,97-4245
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 84, 74 Empl. Prac. Dec. P 45,527 Rita PHILLIPS, Appellant, v. TACO BELL CORPORATION, a California Corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 884

156 F.3d 884

78 Fair Empl.Prac.Cas. (BNA) 84, 74 Empl.

Prac. Dec. P 45,527

Rita PHILLIPS, Appellant, v. TACO BELL CORPORATION, a California Corporation, Appellee.

No. 97-4245.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1998.

Decided Oct. 1, 1998.

John J. Carey, St. Louis, MO, argued (David O. Danis, on the brief), for Appellant.

James N. Foster, St. Louis, MO, argued (Geoffrey M. Gilbert and Stephanie O. Zorn, on the brief), for Appellee.

Before WOLLMAN and MURPHY, Circuit Judges, and DOTY, ¹ District Judge.

DOTY, District Judge.

Rita Phillips appeals the district court's order granting summary judgment in favor of Taco Bell on her Title VII hostile environment and constructive discharge claims. Based on the Supreme Court's recent decisions in Burlington Industries, Inc. v. Ellerth, --- U.S. ----, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. Boca Raton, --- U.S. ----, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), we reverse in part, affirm in part, and remand this case to the district court for further proceedings.

I. BACKGROUND

The facts underlying this employment discrimination case are not in dispute. Appellant Rita Phillips was hired as a cashier by Appellee Taco Bell in March 1994. Beginning in March 1995, Duane Sonntag, a Taco Bell Store Manager and Phillips' immediate supervisor, began sexually harassing Phillips. Sonntag inappropriately touched Phillips or caused her to touch him on at least five occasions from March 1995 to June 18, 1995.

On June 20, 1995, Phillips left a voice mail message for Scott Williams, the local Taco Bell Market Manager, complaining about the unwanted sexual harassment by Sonntag. Williams returned Phillips' call the same day, and arranged a time for a meeting the next day to discuss Phillips' allegations. After Williams and Phillips met on June 21, Williams contacted Paul Ramsey, a Taco Bell Human Resources Manager in Chicago, to discuss Phillips' claims. On June 22, 1995, Williams informed Phillips that he would be out of town until July 5 and that he would conduct an investigation into her allegations against Sonntag upon his return. Williams told Phillips she could take a two-week paid vacation if she preferred not to work during the interim period; however, Phillips told Williams to commence his investigation upon his return and chose to continue working during Williams' absence. Williams received a voice mail message from Phillips on June 29, 1995, in which Phillips complained that "Dwayne didn't get it," and upon returning Phillips' call later that day Williams learned from Phillips that another incident with Sonntag had occurred and that Phillips was no longer comfortable working at Taco Bell. Williams instructed Phillips to take a two-week, paid vacation.

Williams returned to St. Louis on July 5, 1995, but did not begin his investigation into Phillips' allegations until July 10 because Sonntag was on vacation. On July 10, Williams interviewed Sonntag, and thereafter suspended him pending the outcome of the investigation. Williams also took statements from other Taco Bell employees and, after contacting Human Resources, terminated Sonntag on July 14, 1995.

Phillips returned to the Taco Bell store to check her work schedule. After learning that she had been scheduled for some evening hours, she alleges that an Assistant Manager known only as "Jeff" spoke to her in a "nasty" tone of voice. Plaintiff admits that her conversation with Assistant Manager Jeff was void of sexual content. At that instant, Phillips decided to resign her employment with Taco Bell. She did so allegedly believing that she would be subjected to questioning and comments as to what had transpired between Sonntag and her and that she would be subjected to undesirable working conditions as a result of her complaining about Sonntag's sexual harassment.

After receiving a right to sue letter from the E.E.O.C., Phillips filed her complaint against Taco Bell in the United States District Court for the District of Missouri on June 18, 1996, ² claiming she was subjected to a hostile work environment and was constructively discharged in violation of Title VII of the Civil Rights Act of 1964. ³ The district court granted summary judgment in favor of Taco Bell, finding that Phillips' hostile environment sexual harassment claim failed because Taco Bell took prompt remedial action reasonably calculated to end the harassment. In addition, the district court concluded that Phillips' constructive discharge claim failed because Phillips did not show that a reasonable person would find her working conditions intolerable and that she failed to give Taco Bell a reasonable opportunity to remedy the problems she perceived.

II. DISCUSSION

Phillips contends that the district court erred in granting Taco Bell's motion for summary judgment. We review a district court's grant of summary judgment de novo, applying the same standard as the district court and affirming only when the evidence, viewed in the light most favorable to Phillips, reveals no genuine issue of material fact and that Taco Bell is entitled to judgment as a matter of law. Kinman v. Omaha Public School Dist., 94 F.3d 463, 466 (8th Cir.1996); Callanan v. Runyun, 75 F.3d 1293, 1296 (8th Cir.1996).

A. Hostile Environment

Phillips argued in her written materials and at oral argument that the district court improperly granted Taco Bell's motion for summary judgment on her hostile environment claim because Taco Bell had not taken prompt remedial action upon learning of Sonntag's sexual harassment and that Taco Bell knew or should have known of Sonntag's sexual harassment because Sonntag, as store manager, was Phillips' direct supervisor.

In ruling on Taco Bell's motion for summary judgment, the district court applied circuit precedent. On June 26, 1998, however, the Supreme Court announced a new rule to be applied in federal sexual harassment cases. In Burlington Industries, Inc. v. Ellerth --- U.S. ----, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. Boca Raton, --- U.S. ----, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) the Court held that:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Burlington Industries, --- U.S. at ----, 118 S.Ct. at 2270; Faragher, --- U.S. at ----, 118 S.Ct. at 2293.

In this case, there is no question that Sonntag was Phillips' supervisor at the time the alleged harassment occurred. Based on Sonntag's authority over Phillips, Taco Bell is now subject to vicarious liability to Phillips if Sonntag's actions created an actionable hostile working environment. ⁴ The district court's discussion of plaintiff's hostile environment claim was limited to its finding that Taco Bell, when it learned of Sonntag's conduct, took prompt remedial action reasonably calculated to end the harassment. No findings were made on whether Sonntag's actions were severe and pervasive enough to affect a term, condition, or privilege of Phillips' employment. ⁵ Harassment is actionable if it is " 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). The conduct in question "must be sufficient to create a hostile environment, both as it would be viewed objectively by a reasonable person and as it was actually viewed subjectively by the victim." Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir.1998) (citing Harris, 510 U.S. at 21-22, 114 S.Ct. 367). Courts must examine the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S.Ct. 367.

The record here discloses that Sonntag inappropriately touched Phillips or caused her to touch him on at least five occasions from March 1995 to June 18, 1995. Phillips found these incidents humiliating and Sonntag's behavior made it difficult for Phillips to perform her job duties. Since there is sufficient evidence of improper conduct and Phillips' subjective reaction, all that remains is the issue of whether Phillips has shown that the offending conduct created an objectively hostile environment. Under the facts of this case, this is a question best left to the fact-finder. Howard, 149 F.3d at 842, 1998 WL 388673 at * 5; Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir.1997)(discussing Justice Scalia's concurring opinion in Harris which notes that since Congress set no clear standard defining a hostile environment, it must be left to "virtually unguided juries" to decide whether particular conduct is "egregious enough" to merit an award of damages).

Assuming Phillips can show an actionable hostile environment claim, Taco Bell may raise an affirmative defense to either liability or damages. ⁶ As just explained, the two elements of this defense are that (1) Taco Bell exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) Phillips unreasonably failed to take advantage of any...