UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 98-30935 __________________

HELEN SIMPSON,

Plaintiff-Appellee,

versus

CITY OF SHREVEPORT,

Defendant-Appellant.

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Appeal from the United States District Court for the Western District of Louisiana (97-CV-1234) ______________________________________________

January 10, 2000

Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

This discrimination case involves the appeal of the denial of

a motion for judgment as a matter of law pursuant to Rule 50 of the

Federal Rules of Civil Procedure. Finding a legally sufficient

evidentiary basis to support the jury’s verdicts of constructive

discharge and retaliation, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In March of 1992, Helen Simpson (Simpson) began working for

the defendant, City of Shreveport (the City), as an

operator/collector in the waste division of the Public Works

Department. As an operator/collector, she drove garbage trucks and

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. threw refuse onto the trucks. In November of 1993, she was

promoted to supervisor in the waste division. She was the only

female among thirteen supervisors in that division. From the time

she was promoted until she made a sexual harassment complaint to

the City in February of 1995, Simpson’s fellow supervisors and her

immediate supervisor, Milton Chambers, made lewd sexual comments

daily in her presence.2 Prior to making that complaint Simpson

asked Chambers to stop the harassment. He had a meeting with the

men harassing her, but because of Chambers’ own involvement in the

sexual banter Simpson did not believe that Chambers took the

complaint seriously. Simpson also had private conversations with

two of the men in an effort to stop the harassment to no avail.

On February 16, 1995, Simpson met with John Bonanno, a

personnel analyst with the City. She reported that she was being

harassed by her immediate supervisor, Chambers, and several co-

workers, Kenneth Butler, Paul Stephens, William Flakes and Greg

Cooper. At this meeting, Simpson showed Bonanno a journal she had

kept of the sexual comments made by her supervisor and co-workers.

Bonanno made a copy of several of the pages. He assured Simpson

that he would investigate the allegations and take steps to end the

harassment. He also inquired whether she felt threatened and

wanted to be removed from that environment, to which she responded

that she just wanted the harassment to stop.

The next day, Bonanno called the Director of Public Works, Tom

2 In light of the fact that the City does not appeal the jury’s finding of sexual harassment, we do not see the need to list the many crude remarks and actions that were testified to at trial.

2 Dark, who scheduled a meeting with each of the alleged harassers.

They were informed of the accusations against them, warned that any

such behavior should cease immediately, and instructed not to

discuss the matter with Simpson (or anyone else) or retaliate

against her.

Bonanno met with Simpson and advised her that the men had made

allegations against her concerning sexual banter in the workplace.

Although she denied some of the allegations, she admitted that in

anger she had responded to some of the men’s sexually explicit

comments in kind. At the conclusion of the meeting, Bonanno

advised Simpson that both she and the men she accused had

participated in sexual harassment. He informed her that the

investigation was closed and asked her to sign a piece of paper.

Pursuant to his direction, she wrote, in pertinent part, “[t]his

investigation has been done to my satisfaction. [signed] Helen

Simpson.”

Bonanno then sent a confidential memo to Dark, outlining his

findings and recommending that a letter of instruction be sent to

all parties. Based on this recommendation, Simpson and all of the

men she accused of harassing her received a letter of instruction

regarding sexual harassment from Dark. Additionally, all of the

parties were specifically instructed to stop the offending behavior

and provided with a copy of the City’s harassment policy, which

they were to read.

The next day Simpson informed Bonanno that she wanted to re-

open the case because she was not satisfied with the investigation.

He responded that the investigation had been completed, but that if

3 she had something new, he would hear it. He also gave her a copy

of the City’s grievance procedure and told her she could appeal.

Simpson admitted there was less sexual harassment after the

investigation.

After having made the complaint of sexual harassment in

February of 1995, she experienced many acts of retaliation from

Chambers and her co-workers until she resigned in November of 1996.

Meanwhile, on May 6, 1996, Simpson hurt her back lifting a

refrigerator on the job. During the next six months she was at

work only 12 full days. On her last full day of work, Chambers

disciplined her for not communicating with him. She denied the

charge, but was written up based on that accusation. Approximately

two weeks later she resigned her employment. On the advice of her

family, she made a request to rescind her resignation, which was

denied.

Simpson filed suit against the City, seeking compensatory

damages under Title VII on the grounds of sexual harassment, racial

discrimination, constructive discharge, and retaliation. The case

was tried before a jury. Pursuant to Rule 50, the City moved for

judgment as a matter of law at the close of Simpson’s case and at

the close of all the evidence. The district court denied the

motions from the bench. The jury awarded Simpson a lump sum of

$150,000, finding the City liable for sexual harassment,

constructive discharge, and retaliation.3 The City now appeals the

findings of constructive discharge and retaliation.

3 The jury rejected her claim of racial discrimination.

4 II. ANALYSIS

A. CONSTRUCTIVE DISCHARGE

The City contends that the district court erred in denying its

Rule 50 motion for judgment as a matter of law with respect to

Simpson’s constructive discharge claim. This Court reviews de novo

rulings on Rule 50 motions, using the same standards as those

employed by the district court. Burch v. Coca-Cola Co.,

(5th Cir. 1997). If a party has been fully heard on an

issue, a district court may grant an opposing party’s motion for

judgment as a matter of law if “there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on

that issue.” Fed.R.Civ.P. 50(a)(1). This Court reviews the entire

trial record in the light most favorable to the non-movant, drawing

reasonable factual inferences in its favor. Burch,

. “The decision to grant a directed verdict . . . is not a

matter of discretion, but a conclusion of law based upon a finding

that there is insufficient evidence to create a fact question for

the jury.”

(internal quotation marks and citations omitted).

“If the facts and inferences point so strongly and overwhelmingly

in favor of the moving party . . . that reasonable jurors could not

have arrived at a contrary verdict, then we will conclude that the

motion should have been granted.”

Constructive discharge may form the basis of a Title VII

claim. Ward v. Bechtel Corporation,

(5th Cir.

1997). “`To show constructive discharge, an employee must offer

evidence that the employer made the employee’s working conditions

so intolerable that a reasonable employee would feel compelled to

5 resign.’”

(quoting Barrow v. New Orleans S.S. Ass’n,

(5th Cir. 1994)).

The test is objective, looking to whether a reasonable

employee would have felt compelled to resign. Barrow,

n. 19. Whether a reasonable employee would feel compelled to

resign is fact-dependent. However, we have stated that whether the

employee experienced any of the following is relevant to the

determination: (1) demotion; (2) reduction in salary; (3)

reduction in job responsibilities; (4) reassignment to menial or

degrading work; (5) badgering, harassment, or humiliation by the

employer calculated to encourage the employee to resign. Barrow,

. The list is not exclusive.

The City argues that Simpson failed to show constructive

discharge because her sexual harassment claim was properly

resolved, and she never complained of continuing sexual harassment.

Thus, the City argues, any suggestion that her resignation was

somehow triggered by sexual harassment that was reported and

addressed 18 months earlier is simply too attenuated to support any

legal inference connecting the two events.

We see two problems with the City’s argument. First, the

City’s assertion that Simpson’s sexual harassment claim was

properly resolved ignores the jury’s finding of sexual harassment,

a verdict the City did not appeal. Indeed, in the special

interrogatories, the jury expressly answered “no” to the following

question: “Do you find . . . that [the City] promptly and

reasonably investigated plaintiff’s sexual harassment complaints

and took prompt and reasonable remedial action?” We therefore must

6 reject the assertion that the City properly addressed and resolved

Simpson’s sexual harassment complaint.4

Second, the City focuses solely on the evidence of sexual

harassment to argue there was an insufficient evidentiary basis to

support a verdict of constructive discharge. This argument

overlooks Simpson’s evidence of retaliation. At trial, Simpson

testified that Chambers and Cooper warned her “not to tell about

the things that [were] going on in the office or [she] would find

[herself] out of a job, find [herself] at home, wondering why [she]

was not working.” Chambers changed Simpson’s route and made it

difficult for her to leave work to see her physician. On the last

day that Simpson actually worked, Chambers disciplined her for not

communicating with him, a charge she denied. In relation to that

disciplinary action, Chambers told Stephens “I f[---]ed her once

again,” and “[y]ou should have seen the look on that bitch’s face

when she got that write-up, when she got that letter of warning,

which really was a write-up and this is strike three against her.”

Simpson also testified that Chambers “put [her] crews on

trucks with the bed coming loose from the frames. Some of them

didn’t have brakes.” She was not given enough trucks or drivers to

perform her job. On numerous occasions, someone hid the keys to

her truck, deflated her truck’s tires, threw away her gas cards,

and locked the doors to her truck while the engine was running.

In addition to the above retaliatory acts, there were threats

4 We also note that during oral argument counsel for the City conceded that a reasonable jury could have found that Simpson was sexually harassed.

7 of violence directed at Simpson. Flakes and Cooper indicated that

if there were charges lodged against them, they would “spray her

house,” which she understood to mean a drive-by shooting. Cooper

threatened Simpson by telling her that he kept a gun on the job.

Butler informed her that if anyone caused him to receive another

“write-up,” he would “beat their ass” if he caught them off the

compound. Stephens told her “he would do a `post office’ on her

house if someone wrote him up.” Those types of threats continued

until she left employment with the City.

The evidence that Simpson’s supervisor purposely did not

provide her with enough trucks and changed her truck routes

arguably could fall under the fourth factor in Barrow regarding

reassignment to menial or degrading work. More importantly,

Simpson’s evidence regarding the above stated retaliatory acts on

the part of her immediate supervisor, Chambers,5 and her fellow

supervisors,6 constituted badgering, harassment, or humiliation by

5 The City makes no argument on appeal regarding whether Chambers’ actual knowledge of the retaliation may be imputed to the City. Chambers’ duties as supervisor included hiring and disciplining employees. See Sharp v. City of Houston,

(5th Cir. 1999) (explaining that a “manager” under title VII “includes someone with the power not only to hire and fire the offending employee but also to take disciplinary action”). Moreover, the jury was instructed that the City was responsible for Chambers’ conduct regardless of whether the City knew or should have known of the harassment. The City does not challenge that instruction on appeal. Thus, for purposes of this appeal, Chambers’ knowledge of any harassment or retaliatory conduct may be imputed to the City. 6 Again, although there is no argument on appeal regarding imputation of knowledge to the City, there was evidence that a co- worker would call Chambers to inquire whether he could “do” certain things to Simpson, such as taking her trucks. The evidence indicated that Chambers talked to one of Simpson’s co-workers regarding the goal of forcing Simpson’s resignation or termination.

8 the employer calculated to encourage the employee's resignation,

which is the sixth factor in Barrow.

To summarize, there is evidence that Simpson experienced

severe and constant sexual harassment from November of 1993 (when

Simpson was promoted to supervisor) until February of 1995 (when

she filed a complaint with the City). Although the sexual

harassment became less frequent after the investigation, it did not

completely cease. After Simpson made her complaint of sexual

harassment, Chambers and Simpson’s co-workers began their

retaliatory campaign against her. The evidence indicates that

their retaliatory conduct was “calculated to encourage [Simpson’s]

resignation.” Barrow,

. Viewed in the light most

favorable to Simpson, we conclude that there was a legally

sufficient evidentiary basis for a reasonable jury to find that her

working conditions were so intolerable that a reasonable employee

would have felt compelled to resign.7 We therefore affirm the

Additionally, Chambers and a co-worker told Simpson “not to tell about the things . . . in the office or [she] would find [herself] out of a job.” Thus, viewing the record in the light most favorable to Simpson, as we must, there is evidence for a jury to infer that Chambers was aware of the co-workers’ retaliatory acts. As previously set forth, Chambers’ knowledge of such activities may be imputed to the City. 7 The City also argues that because she only worked 12 days in the last six months of her employment and tried to rescind her resignation, her working conditions could not have been intolerable. Again, we must view this evidence drawing inferences in favor of Simpson. Although she had injured her back, another reason for her absence from work could have been that she found these working conditions to be intolerable. Moreover, on the last full day she actually worked, Chambers disciplined her for not communicating with him, a charge she asserts is false. That evidence indicates that the disciplinary action was, in effect, the “last straw” for Simpson. We are not persuaded that attempting to rescind one’s resignation entitles the City to judgment as a matter

9 district court’s denial of the City’s Rule 50 motion for judgment

as a matter of law in regard to Simpson’s constructive discharge

claim.

B. RETALIATION

The City next contends that the district court erred in

denying its Rule 50 motion for judgment as a matter of law with

respect to Simpson’s claim for retaliation. As set forth in more

detail above, we review rulings on Rule 50 motions de novo.

To demonstrate a claim for retaliation, Simpson must prove (1)

that she engaged in an activity that was protected; (2) an adverse

employment action occurred; and (3) a causal connection existed

between the participation in the activity and the adverse

employment action. Webb v. Cardiothoracic Surgery Assoc.,

(5th Cir. 1998). Here, we are concerned solely with

ultimate employment decisions.

Simpson correctly asserts that by filing the formal complaint

of sexual harassment with the City she engaged in an activity that

was protected. Dollis v. Rubin,

(5th Cir. 1995)

(explaining that “[t]here can be no question that [the employee’s]

retaliation claims satisfy the first element of the analysis,

filing an administrative complaint is clearly protected activity”).

Thus, the first prong is satisfied.

In regard to the second prong, as discussed previously, we

have determined that Simpson established a constructive discharge

claim, which qualifies as an adverse employment action. See Sharp

of law.

10 v. City of Houston,

. Therefore, the second prong

of this test is satisfied.

The evidence is sufficient to support the third prong

regarding a causal connection between the protected activity and

the adverse employment action, i.e., between the filing of the

original sexual harassment complaint with the City and Simpson’s

constructive discharge. Indeed, the evidence indicates that

Chambers and her co-workers expressly linked their threats and

retaliatory acts to Simpson’s making a sexual harassment complaint

against them.

Thus, there was a legally sufficient evidentiary basis for a

reasonable jury to find retaliation. We affirm the district

court’s denial of the Rule 50 motion for judgment as a matter of

law with respect to the retaliation claim. Finally, we note that

because we affirm the district court’s denial of the City’s Rule 50

motions, we need not reach the City’s challenges to the “lump sum”

damages award.

For these reasons, the district court’s judgment is AFFIRMED.

11