Walker v. United Parcel Service of America, Inc. ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 11 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
TONYA WALKER, an individual,
Plaintiff-Appellant, No. 02-5097
v. (D.C. No. 97-CV-1042-EA)
UNITED PARCEL SERVICE OF (N.D. Oklahoma)
AMERICA, INC., sued as: United
Parcel Service, Inc.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY , HENRY , and HARTZ , Circuit Judges.
Plaintiff Tonya Walker appeals the district court’s grant of summary
judgment in favor of her former employer, Defendant United Parcel Service, Inc.
(UPS), on her claims for (1) sexual harassment and retaliation under Title VII of
the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and (2)
retaliation under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-
2654. Plaintiff also appeals the district court’s award of costs to UPS, arguing
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
that the cost award should be reversed along with the grant of summary judgment.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part,
and remand for further proceedings.
I. BACKGROUND
Plaintiff began working for UPS as a full-time package driver in February
1990. She claims that during the course of her employment, she was subjected to
a litany of offensive gender-related jokes, comments, and conduct by her
supervisors and coworkers that created a sexually hostile working environment.
Plaintiff complained about some of this behavior to her union steward, although
she did not ask him to file a grievance on her behalf, and he did not do so. She
asserts that she also complained generally about sexual harassment to two
different supervisors in 1997, but admits that she did not provide them with any
specifics. Apparently no action was taken by UPS with respect to the alleged
harassment.
On August 25, 1997, Plaintiff filed a charge of sex discrimination with the
Equal Employment Opportunity Commission (EEOC), citing sexist remarks
allegedly made by her supervisor and asserting that she was disciplined more
frequently than her male coworkers. After obtaining a right-to-sue letter from the
EEOC, she sued UPS on November 6, 1997, alleging, among other things, sexual
harassment and retaliation under Title VII.
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On December 24, 1997, UPS terminated Plaintiff’s employment, claiming
excessive absenteeism and job abandonment. Plaintiff, who was pregnant at the
time, filed a grievance with her union asserting that the absences were pregnancy-
related, and arguing that the termination violated her rights under the FMLA.
It appears that Plaintiff continued working at UPS while the grievance was
being processed. On January 12, 1998, she began a seven-month pregnancy-
related leave of absence from work. While Plaintiff was on pregnancy leave, UPS
and the union settled her grievance by reducing the termination to a five-day
suspension, which ran concurrently with Plaintiff’s leave of absence. It is
undisputed that Plaintiff lost no pay as a result of the “termination” and
subsequent suspension. Nevertheless, in March 1998 Plaintiff amended her
pending Title VII sexual-harassment and retaliation complaint to add a claim
alleging that the suspension violated her rights under the FMLA.
Plaintiff returned to UPS from her leave of absence on August 17, 1998.
She claims that upon her return she was subjected to more harassment and “near
daily disciplinings” for two weeks, which did not stop until she gave UPS a two-
week notice of her intent to quit. On September 18, 1998, Plaintiff resigned from
UPS and began working for Federal Express. Plaintiff ultimately filed a separate
lawsuit against UPS, alleging that she was constructively discharged in retaliation
for exercising her rights under the FMLA and Title VII.
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In July 1998 UPS moved for summary judgment on Plaintiff’s Title VII and
FMLA claims. (The constructive discharge claims were not at issue in the
motion.) The district court granted the motion, finding that it lacked jurisdiction
over the Title VII claims because Plaintiff had failed to exhaust her
administrative remedies, and ruling that the FMLA claim failed because Plaintiff
suffered no damages as a result of the five-day suspension. On appeal we
affirmed the district court’s FMLA ruling but reversed its Title VII ruling. See
Walker v. United Parcel Service, Inc., 240 F.3d 1268, 1271-79 (10th Cir. 2001)
(Walker I). We remanded the Title VII claims for further proceedings on the
merits. See id. at 1279.
Following our decision in Walker I, the district court consolidated the
remanded Title VII sexual-harassment and retaliation claims with Plaintiff’s then-
pending constructive discharge claims. UPS subsequently moved for summary
judgment on the consolidated claims. The district court once again granted
summary judgment, finding that (1) Plaintiff’s sexual harassment claim failed
because Plaintiff was not subjected to a sexually hostile work environment, and
(2) Plaintiff’s Title VII and FMLA retaliation claims failed because Plaintiff was
not constructively discharged. The court also awarded costs to UPS. Plaintiff
now appeals those rulings.
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II. STANDARD OF REVIEW
“We review a decision granting summary judgment de novo, using the same
legal standard applicable in the district court.” Mesa v. White, 197 F.3d 1041,
1043 (10th Cir. 1999). Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(c). “The moving party is entitled to summary judgment ‘[w]here the record
taken as a whole could not lead a rational trier of fact to find for the non-moving
party.’” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th
Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (brackets in Penry)). “When applying this standard, the court
must examine the factual record and reasonable inferences drawn therefrom in the
light most favorable to the non-moving party.” Id.III. DISCUSSION
A. Sexual harassment
1. Hostile work environment
Plaintiff argues that the district court erred in failing to consider much of
her evidence of sexual harassment, and in finding as a matter of law that she was
not subjected to an objectively hostile work environment at UPS.
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“For a hostile environment claim to survive a summary judgment motion, a
plaintiff must show that a rational jury could find that the workplace is permeated
with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Penry, 155 F.3d at 1261 (internal quotation marks
omitted). “The plaintiff must produce evidence that she was the object of
harassment because of her gender.” Id. “In deciding whether or not a hostile
environment existed, it is necessary to look to all the circumstances involved in
the situation. These may include ‘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,’” Nieto v. Kapoor, 268 F.3d 1208, 1218 (10th Cir. 2001) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)), but “no single factor is
required.” Harris, 510 U.S. at 23. “While the plaintiff must make a showing that
the environment was both objectively and subjectively hostile, she need not
demonstrate psychological harm, nor is she required to show that her work
suffered as a result of the harassment.” Penry, 155 F.3d at 1261.
Plaintiff points to a number of incidents that allegedly occurred during the
course of her employment at UPS and argues that those incidents were
sufficiently severe or pervasive to create an actionable hostile work environment.
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The district court considered only six of the incidents in ruling on UPS’s
summary-judgment motion, despite the fact that UPS in its supporting brief
assumed (but did not admit) that all the alleged incidents occurred, citing to
Plaintiff’s sworn interrogatory responses as the source of the allegations. UPS’s
position was that even if every incident occurred, there was no hostile work
environment as a matter of law. Apparently the court considered only six of the
incidents because Plaintiff failed to point to additional evidence in her summary-
judgment response that the remaining incidents occurred. We agree with Plaintiff
that this was error; Plaintiff was not required to come forward with additional
evidence to support allegations that UPS did not dispute, when the supporting
evidence was already cited in UPS’s summary-judgment brief. On appeal UPS
does not defend the district court’s consideration of only six of the alleged
incidents, and does not argue that our review should be confined to only those six
incidents.
We disagree, however, with Plaintiff’s contention that the district court
erred when it did not consider additional incidents that allegedly occurred
following Plaintiff’s return to UPS from pregnancy leave in August 1998. As a
review of the summary-judgment pleadings makes clear, Plaintiff did not argue in
district court that those incidents were relevant to her sexual harassment claim;
accordingly, we will not consider them on appeal. See Farmers Ins. Co., Inc. v.
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Hubbard, 869 F.2d 565, 570 (10th Cir. 1989) (“This court will generally not
address issues that were not considered and ruled upon by the district court.”).
We therefore consider the following alleged conduct identified in
Plaintiff’s opening brief on appeal in reviewing the propriety of summary
judgment here:
1. In October 1990 a male supervisor “leered” at Plaintiff while she was
wearing her street clothes and told her, “‘[D]amn, you sure look a
hell of a lot nicer in that than in those browns.’”
2. While she was driving with male supervisors they would make
“occasional comments about certain sexual features of other women,”
i.e., the supervisor would refer to a woman’s “big tits.” (No date is
provided.)
3. A male supervisor told Plaintiff that the job was “‘just too hard on a
woman,’ and suggested if her husband could not care for her she
might find a ‘sugar daddy.’” (No date is provided.)
4. A male coworker “motion[ed] with his hands as if measuring
[Plaintiff’s] hips.” (No date is provided.)
5. In 1996 a male supervisor told Plaintiff “he could not blame a dog
for wanting to bite her on the buttocks.”
6. In March 1997 coworkers laughed when Plaintiff “ate a banana as a
metaphor for female oral gratification of a man.”
7. In the spring of 1997 two male supervisors included Plaintiff “in a
conversation during which they told a joke using a piece of paper
that symbolized a man’s penis.”
8. In the summer of 1997 a male coworker “put his arm around
[P]laintiff and invited her to his birthday party saying[,] ‘[W]e’ll just
get drunk and see what happens from there.’”
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9. A male supervisor told Plaintiff that her coworkers “might help her if
she rolled up her shorts and would undo her UPS blouse.” (Plaintiff
testified at her deposition that this occurred in the summer of 1997.)
10. In June 1997 a male supervisor showed Plaintiff “a photograph of a
birthday cake depicting a naked woman.”
11. In June 1997 another male supervisor told Plaintiff that if “she would
‘bat’ her eyes and do some ‘sweet talking’ she might get a [different]
male supervisor . . . to allow her to drive a different truck.”
12. In August 1997 two male coworkers asked Plaintiff “whether she had
‘condoms or crotchless panties’ in her purse.”
13. In October 1997 Plaintiff learned from a male supervisor “that he had
been asked by another UPS manager whether or not he had
impregnated [Plaintiff].”
UPS concedes that the foregoing incidents are gender-related and does not
challenge their admissibility. Its sole contention is that considered as a whole,
these alleged incidents are insufficiently severe or pervasive as a matter of law to
create a sexually hostile work environment.
“[O]ur precedent underscores the severity and pervasiveness evaluation is
particularly unsuited for summary judgment because it is quintessentially a
question of fact.” McCowan v. All Star Maint., Inc., 273 F.3d 917, 923 (10th Cir.
2001) (internal quotation marks omitted). Although this is a close case for
summary judgment, the comments and conduct at issue here fall within the
spectrum of what we have previously held to be sufficient for a rational jury to
find an actionable hostile work environment. See Smith v. Northwest Fin.
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Acceptance, Inc., 129 F.3d 1408, 1413-15 (10th Cir. 1997) (jury reasonably could
find that six comments over 23-month period created a hostile environment;
comments included a supervisor, within earshot of plaintiff’s coworkers, telling
plaintiff to “get a little this weekend” so that she would “come back in a better
mood”; calling her a “sad piece of ass”; and telling her she “would find a decent
man if [she] just quit dating Mexicans”); O’Shea v. Yellow Tech. Servs., Inc., 185
F.3d 1093, 1098-1102 (10th Cir. 1999) (reversing summary judgment as jury
could find hostile environment where plaintiff heard male coworker compare his
wife to Playboy magazine, describe a dream involving a naked woman, make
frequent derogatory comments about women, and tell other employees that
plaintiff was planning to file a sexual harassment suit against him, and where
plaintiff alleged that such conduct caused her to be ostracized by her coworkers
and impeded her ability to do her job).
We note that an actionable hostile work environment requires objectionable
conduct that is “severe or pervasive,” Penry, 155 F.3d at 1261 (emphasis added);
the test is disjunctive, and either element provides an independent ground for
finding a hostile work environment. Smith, 129 F.3d at 1415; Witt v. Roadway
Express, 136 F.3d 1424, 1432 (10th Cir. 1998). Even assuming that UPS is
correct that, when viewed in the context of the work environment at UPS, the
above-cited incidents were not cumulatively severe (an issue we do not address),
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there is sufficient evidence for Plaintiff to survive summary judgment on the issue
of pervasiveness. Although UPS asserts that the conduct at issue occurred over a
seven-year period and is therefore not pervasive as a matter of law, at least eight
of the thirteen incidents occurred over an eight-month period in 1997. Under the
circumstances, we believe that a rational jury could find that the alleged
harassment was sufficiently pervasive to create an objectively hostile work
environment. Cf. Smith, 129 F.3d at 1415 (pervasiveness inquiry requires analysis
of the “number, sequence, and timing of the conduct”); see id. (six offensive
gender-related statements over 23-month period could reasonably be found
pervasive); cf. Penry, 155 F.3d at 1263 (gender-related comments to plaintiff in
three-year period “too few and far between to be considered sufficiently severe or
pervasive” (internal quotation marks omitted)).
Finally, we believe that Plaintiff has pointed to sufficient evidence to
survive summary judgment on the subjective prong of the test. See Penry, 155
F.3d at 1261 (“plaintiff must make a showing that the environment was both
objectively and subjectively hostile”). As discussed more fully below, Plaintiff
complained about some of the incidents to her union steward, and informed two
different supervisors in the summer of 1997 (when most of the incidents allegedly
occurred) that she felt she was being sexually harassed. Viewed in the light most
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favorable to Plaintiff, this evidence indicates that she subjectively perceived her
work environment to be hostile.
Accordingly, we hold that the district court erred when it granted summary
judgment to UPS on the hostile-work-environment issue.
2. Affirmative defense
As it did in the district court, UPS argues that even if Plaintiff was
subjected to a hostile work environment, it is shielded from liability under the
affirmative defense outlined in Faragher v. City of Boca Raton, 524 U.S. 775(1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Because the
district court ruled that summary judgment was appropriate on the hostile-work-
environment issue, it did not address the Faragher/Ellerth defense. We now turn
to that issue.
Under Faragher and Ellerth an employer is vicariously liable for the
harassing acts of its supervisory employees, but it may escape liability if it can
prove a two-pronged affirmative defense. See Faragher, 524 U.S. at 807; Ellerth,
524 U.S. at 765. The defense, however, “can only be raised if ‘no tangible
employment action [wa]s taken’ by the harassing supervisor against the plaintiff
employee.” Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1024 (10th Cir. 2001)
(quoting Faragher, 524 U.S. at 807) (brackets in Harrison)). Plaintiff does not
dispute UPS’s assertion that it took no tangible employment action against her.
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Therefore, under Faragher and Ellerth UPS can escape liability if it can establish,
by a preponderance of the evidence, that (1) it “exercised reasonable care to
prevent and correct promptly any sexually harassing behavior,” and (2) Plaintiff
“unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Faragher,
524 U.S. at 807; Ellerth, 524 U.S. at 765. To succeed in this appeal, UPS must
demonstrate that there are no material issues of fact and that it is entitled to
judgment as a matter of law on both prongs of the defense. See Harrison, 248
F.3d at 1024-1026 (defendant must prove both prongs of defense to prevail);
Ellerth, 524 U.S. at 765 (affirmative defense “comprises two necessary
elements”).
UPS argues that both prongs of the Faragher/Ellerth defense are met here.
It asserts that under the first prong it “exercised reasonable care to prevent and
correct promptly any sexually harassing behavior,” Faragher, 524 U.S. at 807;
Ellerth, 524 U.S. at 765, because it had promulgated a sexual harassment policy
that was in effect during Plaintiff’s employment. This policy defined sexual
harassment and contained the following “Reporting Procedure”:
If you believe you have been the subject of sexual harassment, or if
you are aware of a situation that could constitute sexual harassment,
immediately notify your supervisor, or Human Resources manager
(who is the designated Affirmative Action Officer in your district).
The matter will be investigated in a confidential manner.
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United Parcel Service will take prompt corrective action against
sexual harassment. Anyone who is found, upon investigation, to
have engaged in sexual harassment will be subject to appropriate
discipline up to and including termination of employment and may be
subject to personal legal and financial liability. This policy applies
to all UPS employees.
Aplt’s App. at 139 (emphasis added). UPS further asserts that under the second
prong of the defense, Plaintiff “unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise,” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765, because she
failed to lodge a proper complaint under its sexual harassment policy.
Plaintiff counters that she properly complained about sexual harassment,
because she (1) informed her union steward about a number of the allegedly
harassing incidents, and (2) complained in 1997 to two supervisors about sexual
harassment. We agree with UPS that Plaintiff’s complaints to the union
steward—who is neither a “supervisor” nor a “Human Resources manager”—were
not reasonable attempts to complain about sexual harassment at UPS.
Nevertheless, a rational jury could infer that she reasonably complained about
sexual harassment to a supervisor.
According to Plaintiff’s interrogatory responses, in July 1997 she spoke
with Mark Kelly, who UPS admits is a supervisor within the meaning of its sexual
harassment policy. She stated that she complained to Mr. Kelly
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about unfair treatment and sex harassment. Plaintiff explained to
Mark Kelly that other drivers are continually getting away with
things that she was suspended for. Plaintiff explained to Mark Kelly
that she believed Hally Price [one of Plaintiff’s supervisors] does not
like women in his workplace including [P]laintiff. Mark Kelly
immediately began defending Hally Price and making excuses for the
way things are done around UPS. Mark Kelly also said to
[P]laintiff[,] “If a person fakes as many injuries as [the [P]laintiff
does] they can expect to have some troubles somewhere along the
way.
Aplt’s App. at 278.
Plaintiff testified at her deposition about her conversation with Mr. Kelly:
Q. [Y]ou just came up and said, I’m being unfairly treated and
sexually harassed, and left it at that; is that what you’re telling me?
A. I told him about the discrimination part of it, how he seems to
always single me out and let some of the guys get away with things.
And Mark Kelly started defending him. So at that point, I didn’t feel
like it was going to be beneficial to tell him anymore . . . because he
was already defending him on that account.
....
Q. With respect to sexual harassment, did you ever tell him anything
other than, I think I’m being sexually harassed?
A. No.
Q. You never gave him any detail, did you?
A. No.
Aplee’s Supp. App. at 60-61.
Construing all reasonable inferences in favor of Plaintiff, the above-cited
evidence indicates that Plaintiff complained generally about “sexual harassment”
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to Mr. Kelly. UPS focuses on the fact that Plaintiff failed to provide details of
the harassment. But a rational jury could conclude that her failure to provide
details to Mr. Kelly was not unreasonable in light of his hostile response to her
general complaint of sexual harassment (according to Plaintiff he “defend[ed]” a
fellow supervisor and “ma[de] excuses” for practices at UPS) and the fact that he
did not solicit such details from her. Accordingly, viewing the evidence in the
light most favorable to Plaintiff, UPS was not entitled to summary judgment on
the Faragher/Ellerth defense.
B. Retaliation
Plaintiff argues that the district court erred when it granted summary
judgment on her retaliation claims under Title VII and the FMLA. We review
such claims under the analytical framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). See Wells v. Colo. Dept. of Transp., 325 F.3d
1205, 1212 (10th Cir. 2003) (Title VII); Richmond v. Oneok, Inc., 120 F.3d 205,
208 (10th Cir. 1997) (FMLA). Under that familiar standard, Plaintiff initially
must establish a prima facie case, which UPS may rebut by offering a legitimate
nondiscriminatory reason for the adverse employment action; if UPS does so, the
burden shifts back to Plaintiff to show that the asserted reason is pretextual. See
Wells, 325 F.3d at 1212; Richmond, 120 F.3d at 208.
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To establish a prima facie case of Title VII or FMLA retaliation, Plaintiff
must show that (1) she engaged in protected activity under the applicable act; (2)
she subsequently suffered an adverse employment action; and (3) a causal
connection existed between the protected activity and the adverse employment
action. Wells, 120 F.3d at 1213; Richmond, 120 F.3d at 208-09. The district
court found that Plaintiff’s claims under both statutes failed because she
presented insufficient evidence of her asserted adverse action—constructive
discharge. Plaintiff contends that this was error, and also appears to argue that
the district court erroneously ignored her other alleged adverse action—her
“termination,” which was subsequently reduced to a five-day suspension and
served concurrently with her pregnancy leave, with no monetary loss to
Plaintiff—when it rejected her Title VII retaliation claim. We address each
argument in turn.
1. Constructive discharge
“Constructive discharge occurs when the employer by its illegal
discriminatory acts has made working conditions so difficult that a reasonable
person in the employee’s position would feel compelled to resign.” Sanchez v.
Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir. 1998) (internal quotation marks
omitted). “Essentially, a plaintiff must show that she had no other choice but to
quit.” Id. (internal quotation marks omitted). “The conditions of employment
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must be objectively intolerable; the plaintiff’s subjective views of the situation
are irrelevant.” Id. (internal quotation marks omitted). “If an employee resigns
of her own free will, even as a result of the employer’s actions, that employee
will not be held to have been constructively discharged.” Heno v. Sprint/United
Mgmt. Co. 208 F.3d 847, 858 (10th Cir. 2000) (internal quotation marks omitted).
In the district court Plaintiff pointed to several incidents that allegedly
occurred during a two-week period following her return to UPS from pregnancy
leave, and argued that these incidents compelled her to resign. As identified in
her appellate brief, those incidents are (1) supervisors “constantly criticized and
disciplined” Plaintiff “for minor infractions supervisors ordinarily ignored”
(although she has pointed to no specific examples); (2) a male supervisor initially
refused Plaintiff’s request to return to town to use a restroom while they were
delivering packages along a rural route, suggesting instead that she “go squat”
behind the truck or “find a tree somewhere” (although she admitted that he drove
her to town to use the restroom when she rejected his suggestion); (3) the same
supervisor suggested Plaintiff urinate “into a 2 quart pop bottle” while making
deliveries on the rural route; (4) a supervisor, upon seeing Plaintiff get a dolly to
unload packages, said “oh bull shit, you know you don’t need that dolly”
(although she admitted that he did not prevent or forbid her from using the dolly,
and she did in fact use the dolly); and (5) a supervisor failed to take corrective
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action to discipline a UPS driver who made a crude comment regarding Plaintiff’s
pregnancy (although she pointed to no evidence indicating that the supervisor
heard the comment or that she complained to anybody about it).
The conditions at UPS described by Plaintiff were not such that a
reasonable employee would have felt compelled to resign. Moreover, rather than
her resignation being compelled, the evidence indicates that her resignation was
entirely a product of her “own free will,” Heno, 208 F.3d at 858 (internal
quotation marks omitted). Plaintiff fails to point to any evidence that she
complained to anyone at UPS about her treatment following her return from her
seven-month pregnancy leave, or otherwise attempted to alleviate her allegedly
“intolerable” working conditions; this failure undermines her contention that she
had “no other choice but to quit.” Sanchez, 164 F.3d at 534. Also, she first
procured a job at Federal Express, then gave UPS a two-week notice of her intent
to quit, before continuing to work at UPS until September 18, 1998, when she left
for her new job. Cf. Yearous v. Niobrara County Mem’l Hosp., 128 F.3d 1351,
1356 (10th Cir. 1997) (whether employee is “permitted to select the effective date
of resignation” is a factor indicating that resignation was not a constructive
discharge (internal quotation marks omitted)). Accordingly, we hold that the
district court did not err when it ruled that Plaintiff was not constructively
discharged.
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2. Termination/suspension as adverse action
Next, Plaintiff appears to argue that the district court erred in not
considering her retaliation claim under Title VII that alleged as an adverse action
the termination/suspension. (She does not contend that the
termination/suspension is a basis for her claim under the FMLA.) UPS fails to
address this argument in its Answer Brief, although it is clear from the record that
the claim was at issue below and briefed by both parties in the district court. The
district court also made no reference to this claim in its order granting UPS
summary judgment on all Plaintiff’s claims. Under the circumstances we believe
it is appropriate for the district court to address in the first instance Plaintiff’s
contention that she was terminated (and subsequently suspended, with no
monetary loss to her) on December 24, 1997, in retaliation for her November 6,
1997 Title VII lawsuit. We accordingly remand for consideration of the claim,
expressing no opinion about its merits.
C. Costs
Finally, Plaintiff appeals the district court’s award of costs to UPS as the
prevailing party. Because UPS no longer qualifies for prevailing party status (a
determination that must await further proceedings), we vacate the award and
remand the issue for further consideration upon the resolution of Plaintiff’s Title
VII claims. Walker I, 240 F.3d at 1279.
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IV. CONCLUSION
We REVERSE the district court’s grant of summary judgment on Plaintiff’s
sexual harassment claims, and AFFIRM its grant of summary judgment on her
constructive discharge claims under Title VII and the FMLA. We VACATE the
district court’s award of costs in favor of UPS. We REMAND for further
proceedings consistent with this opinion.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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