                       United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 96-3814
                                 ___________

Iris M. Summit,                       *
                                      *
             Appellant,               *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Eastern District of Arkansas.
S-B Power Tool, (Skil Corporation), a *
Division of Emerson Electric Company, *
                                      *
             Appellee.                *
                                 ___________

                           Submitted: May 22, 1997
                              Filed: August 13, 1997
                                ___________

Before MURPHY, HEANEY, and MAGILL, Circuit Judges.
                           ___________

MAGILL, Circuit Judge.

    Iris Summit appeals the district court's1 entry of
judgment notwithstanding the verdict for S-B Power Tool
(the Company) in this constructive discharge action. On
appeal, Summit argues that: (1) because there was
substantial evidence to support the jury's verdict, the
district court erred by granting a judgment as a matter


      1
        The Honorable Henry Woods, United States District Judge for the Eastern
District of Arkansas.
of law; (2) the




                  -2-
district court erred in limiting the evidence that Summit
could present; and (3) the district court erred in
failing to instruct the jury on punitive damages.      We
affirm.

                           I.

    Summit, a 54-year-old woman, worked for the Company
for nineteen years before resigning on October 28, 1994.
Immediately prior to her resignation, Summit held the
position of line supervisor on the second shift.

    In December 1993 or January 1994, Human Resources
Manager Donna Meyer first heard complaints regarding
favoritism in the assignment of overtime by Summit.
Although there had been an employee survey done about six
months earlier that indicated no problems with Summit's
performance, three employees complained to and were
questioned by Meyer.    After consulting with the plant
manager, Randy Guthrie, the employees on Summit's line
were interviewed. Over half of the employees indicated
that they were having problems with Summit because of the
way overtime was distributed, because of favoritism, or
because of lack of communication.

    Summit's direct supervisor, Frank Saterfeil, was then
told of the complaints. Together, Meyer and Saterfeil
prepared an issues and objectives sheet to inform Summit
of the problems and to give her recommendations for
improvement. On March 11, 1994, Meyer and Saterfeil met
with Summit to discuss Summit's performance and give her
their recommendations. Summit claims that she was only
following Saterfeil's orders by assigning overtime to

                           -3-
people who knew how to do the work and that Saterfeil
told her to continue to schedule overtime "like we've
always done the overtime." Trial Tr. at 20 (testimony of
Iris Summit).
    In April 1994, Summit's regular performance review
was due. Saterfeil prepared Summit's review and sent it
to Guthrie for his signature.     Based on this review,
Summit was to receive an increase in pay.       However,
Guthrie chose to postpone her review and




                           -4-
raise for three months because of the problems she was
having. See id. at 110. Following the delay, in July,
the Company believed Summit had shown improvement and
gave her the review along with a retroactive pay
increase. Id. at 126, 140, 152.

    For its busy season, the Company typically hires
temporary employees and adds additional lines on a second
shift. In June 1994, Summit was temporarily transferred
to the second shift to supervise a line of temporary
employees.    Due to their high turnover rate, the
temporary employees were more difficult to manage.

    When Saterfeil approached Summit about the transfer,
he told her, "'I'm moving you to second shift. You are
going to have to take care of the Moto tool lines and
accessories.'"   Id. at 21 (testimony of Iris Summit).
When Summit told Saterfeil that she "didn't want nothing
to do with that," id. at 22, Saterfeil responded, "'I
need you to go to it.'" Id. Regarding the motive for
Summit's transfer, Guthrie, Meyer, and Saterfeil stated
that, after considering Summit's problems with the
employees she currently supervised, they wanted to give
Summit a fresh chance to interact with a new set of
employees.   Id. at 111-12, 139, 154-55.        However,
Summit claims Saterfeil explained her assignment to
second shift by stating, "'I'm going to give you a
break. . . . Usually, I don't send a woman to do a man's
job. I want you to know this is a break for you.'" Id.
at 30-31 (testimony of Iris Summit); but see id. at 144
(Saterfeil testifying that he made no such statement).
    Also in June 1994, David Hoffman, a younger male
employee with less experience, was promoted to the

                           -5-
position of temporary unit manager of the second shift
and Summit's immediate supervisor.      According to the
Company, Hoffman was selected for the position over
Summit because he received better performance ratings and
because Summit had received a performance warning in
March.    See id. at 114 (testimony of Donna Meyer).
However, Summit claims that Saterfeil explained Hoffman's
supervisory position over Summit by saying, "'[w]e've got
to have somebody on [the line] to watch you women. We
can't leave you women out there. No telling




                           -6-
what y'all would do if there wasn't a man to watch over
you.'"    Id. at 30; but see id. at 144 (Saterfeil
testifying that he made no such statement).

    On August 11, 1994, Summit received a written
performance warning.     This warning was based on a
memorandum written by Hoffman to Saterfeil.       Hoffman
complained that, after the decision was made to shut down
one of the lines due to quality problems, he asked Summit
to explain to her employees why the line was being shut
down and why they were being sent home, but Summit failed
to do so.      Furthermore, Hoffman stated that other
employees had left work because Summit failed to notify
them that they were required to work late.        Hoffman
concluded that Summit had a problem communicating with
employees on an individual basis. Following discussions
between Meyer, Hoffman, and Saterfeil, a written warning
was given to Summit by Saterfeil.     The warning stated
that Summit had sixty days to "correct [the] problems or
further disciplinary action may be taken that could lead
to termination." Appellee's App. at 42.

    After the August warning, no formal disciplinary
action was ever taken against Summit, and the sixty-day
time period came and went. Trial Tr. at 64 (testimony of
Iris Summit). However, Summit claims that both Saterfeil
and Hoffman told her that she was going to be fired. Id.
at 31, 64; but see id. at 78 (testimony of David
Hoffman), 134 (same); 142 (testimony of Frank Saterfeil).
Summit's frustration with supervising an assembly line of
temporary employees and her fear of being fired resulted
in her not being able to sleep and her stomach hurting
continuously. In late August, Summit's physician gave

                           -7-
her medication for the anxiety and Summit took a week of
medical leave. When Summit returned, "[a]ll the people
were real glad to see [her]. . . . And David Hoffman said
that he didn't realize how much that [she] had actually
done. . . . [H]e was really glad to see [her] back." Id.
at 32 (testimony of Iris Summit).
    Summit also claimed that, "while all this was going
on," the following interchange occurred between herself
and Saterfeil:




                           -8-
    [O]ne day he asked me, "How come Donna [Meyer]
    don't like you?" And I said, "I don't know. I
    didn't know she didn't."   And he said, "Well,
    she is doing some weeding. Maybe she is just
    weeding out the old ones." I said, "Well, then,
    that means you will be going with me; right?"
    And he said, "Well, I should have said 'weeding
    out the old women.'"

Id. at 42;    but   see   id.   at    144   (testimony   of   Frank
Saterfeil).

    On October 17, 1994, Summit quit her job.        The
Company asserts that, when she resigned, Summit stated
she was leaving to return to the nursing profession and
pursue her certification as a registered nurse (RN). Id.
at 117 (testimony of Donna Meyer), 133 (testimony of
David Hoffman), 142 (testimony of Frank Saterfeil).
However, at trial Summit claimed that she had never told
anybody that her reason for resigning was to go back to
nursing. Id. at 61, see also id. at 33, 37. One month
after she resigned, Summit began working as a licenced
practical nurse (LPN).     On her application for this
position, Summit stated her reason for leaving the
Company as "'[r]eturn to nursing.'"      Id. at 62, 171.
When she left the Company, Summit was receiving $15.21
per hour. Her starting pay as an LPN was $7.25 per hour.

    On February 15, 1995, Summit filed a charge of sex
and age discrimination against the Company with the Equal
Employment Opportunity Commission (EEOC).       The EEOC
issued a right to sue letter and Summit filed suit on
December 21, 1995. Summit brought her action pursuant to
both the Age Discrimination in Employment Act of 1967, 29


                                -9-
U.S.C. §§ 621-634 (1994) (ADEA), and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17
(1994) (Title VII).

    Before trial the Company made a motion in limine
requesting the district court to enter an order to
prevent mention of alleged discriminatory events for
which Summit had not filed a timely charge of
discrimination with the EEOC. The Company argued that:




                          -10-
        A plaintiff who claims discrimination must
    file a charge of discrimination "within one
    hundred and eighty days after the alleged
    unlawful employment practice occurred . . . ."
    42 U.S.C. § 2000e-5(e)(1). [Summit] filed her
    EEOC charge on February 15, 1995, thus any acts
    occurring before August 15, 1994 are not
    actionable.

Def.'s Br. in Supp. of its Mot. in Limine at 6-7. Thus,
the Company sought to exclude any reference to Summit's
alleged sexual harassment by Saterfeil in 1988, Summit's
temporary transfer to the second shift in July 1994,
Summit's non-promotion to the temporary position of Unit
Manger in July 1994, and the disciplinary actions taken
against Summit on March 8, 1994, and August 11, 1994. In
reference to the alleged sexual harassment in 1988, the
Company also noted that Summit's EEOC charge did not
include, as a basis for discrimination, retaliation for
her contemporaneous reporting of the alleged harassment
to the Company. Id. at 5.

    Summit responded to the Company's motion in limine by
arguing that:

    Although [Summit] may not be able to obtain
    relief for those discriminatory acts which
    occurred outside of the window of the EEOC
    charge, it has long been held that other acts of
    discrimination outside of the charge period are
    properly   admissible   as  general   background
    information that is relevant in deciding whether
    or not the acts complained about during the
    charge period are more likely to have occurred
    than not.



                           -11-
Pl.'s Br. in Supp. of Her Resp. to Def.'s Motion in
Limine at 2.

    At trial, the district court allowed as background
the presentation of evidence regarding events occurring
before August 15, 1994, more than 180 days before the
EEOC claim was filed. Specifically, the district court
allowed testimony regarding Summit's transfer to the
second shift in July 1994, Summit's non-promotion in July
1994, and both disciplinary actions taken against Summit
on March 8, 1994, and




                           -12-
August 11, 1994. However, the district court would not
allow Summit to present evidence of sexual harassment
that allegedly occurred in 1988. The district court held
that "it is too remote. In 1988, that is going back six
years from these events that the complaint was made
about. It seems to me that would just not be relevant."
Trial Tr. at 39.     The proffered testimony related to
Saterfeil's attempt to get Summit to date him. Summit's
counsel stated that:

    The plaintiff would testify that Mr. Saterfeil
    approached her, Mrs. Summit, and tried to get
    her to date him or go out with him.       He was
    married at the time and she refused his advances
    and complained to her supervisors about that.
    And she and Mr. Saterfeil both were counseled at
    that time. And she would testify his attitude
    toward her then changed from one of approaching
    her in a social nature to one of harassment
    which continued on up through the filing of
    these charges.

Id. at 39-40. Summit also wanted to call Merle Young, a
former Human Resources Manager for the Company. Summit's
counsel proffered that:

    Mr. Young would also testify he is aware of some
    opinions of the defendant which reflected Mr.
    Saterfeil had employee relation problems, that
    Mr. Saterfeil was counseled because of that, and
    he would testify Mr. Saterfeil caused undue
    stress on Mrs. Summit because of the way he
    would   discipline   her  in   front  of   other
    employees, and that this was carried on up until
    [Young's] tenure ended in 1993.

Id. at 41.

                          -13-
    At the close of the case, the district court also
denied Summit a punitive damages instruction. The jury
returned a verdict in favor of Summit on her Title VII
claim and for the Company on the ADEA claim. The jury
found that Summit had been constructively discharged on
the basis of sex, but not on the basis of age.




                          -14-
    The district court then entered judgment for the
Company notwithstanding the verdict. The district court
held that substantial evidence did not support the
verdict.    The district court found that Summit had
resigned her position to re-enter the health care
profession and that the only evidence to the contrary was
Summit's own conclusory statements. The district court's
order relied solely on this Court's ruling in Tidwell v.
Meyer's Bakeries, Inc., 93 F.3d 490 (8th Cir. 1996).
Summit appeals.

                          II.

    Notwithstanding Summit's argument to the contrary,
the district court properly granted the Company judgment
as a matter of law because there was not substantial
evidence to support the jury's verdict.           Summit
summarizes the evidence by first noting that she was a
nineteen-year veteran employee who had never received a
written reprimand before March 1994. Furthermore, she
presented evidence of

    [(1)] her transfer to the second shift where she
    had the responsibility of supervising 46
    temporary employees with only two regular
    employees to help train [and] given defective
    parts from vendors to use in the assembly of the
    items built on her line by the temporaries[;
    (2)] the stress on her because she was unable to
    make production, stress from the two previous
    reprimands and the threat of discharge, and the
    stress and frustration from having an inferior
    employee, David Hoffman, with less experience
    and   seniority,    promoted   to   a   position
    immediately over her [and] that David Hoffman's
    position of temporary unit manager, supervising

                           -15-
    Summit, only existed for approximately one month
    past Summit's resignation[; and (3) the fact]
    that sixty (60%) percent of the menial positions
    on the line [are] filled by women as compared to
    twenty-seven   (27%)   percent  of   supervisory
    positions being filled by women.

Appellant's Br. at 27-28. Summit argues that she was the
victim of sexual harassment, that sexual harassment
created a hostile work environment, and that the hostile




                          -16-
environment supports the jury verdict that                                she     was
constructively discharged.2 We disagree.

    In reviewing a judgment as a matter of law, this
Court uses the same standard as the district court:

      In a motion for [a judgment as a matter of law],
      the question is a legal one, whether there is
      sufficient evidence to support a jury verdict.
      This court must analyze the evidence in the
      light most favorable to the prevailing party and
      must not engage in a weighing or evaluation of
      the   evidence    or    consider   questions   of
      credibility.     We have also stated that to
      sustain a motion for [a judgment as a matter of
      law], all the evidence must point one way and be
      susceptible    of    no    reasonable   inference
      sustaining the position of the nonmoving party.

White     v.    Pence,      961    F.2d     776,     779     (8th     Cir.     1992)

      2
        On appeal, the Company objects to Summit's argument regarding sexual
harassment and hostile work environment because only a constructive discharge claim
went to the jury. The Company notes Summit's failure to object when the jury
instructions did not contain instructions on sexual harassment or on hostile work
environment. See Verdict Form, reprinted in Appellant's App. at Tab U; Jury
Instructions, reprinted in Appellant's App. at Tab V (No. 1, 7, 9, 13). Because only a
claim of constructive discharge went to the jury, we will consider no other claims on
appeal. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is the general rule, of
course, that a federal appellate court does not consider an issue not passed upon
below."); Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 295 (3d Cir.
1991) (holding that reviewing court would not consider an issue raised on appeal but
not considered by jury at trial); Lambur v. Yates, 148 F.2d 137, 138 (8th Cir. 1945)
("Ordinarily under these circumstances an appellate court will refuse to review the
judgment of a trial court entered upon the verdict of a jury. On appeal the parties are
usually restricted to the theory on which the cause was tried in the lower court."
(citations omitted)).

                                         -17-
(footnote and citations omitted); see also Jarvis v. Sauer
Sundstrand Co., 116 F.3d 321, 324 (8th Cir. 1997).




                                      -18-
    The evidence Summit presented does not support a
finding of constructive discharge.     This Court has
articulated the standard for constructive discharge as
follows:

        To constitute a constructive discharge, the
    employer must deliberately create intolerable
    working conditions with the intention of forcing
    the employee to quit and the employee must quit.
    The plaintiff can satisfy the intent requirement
    by demonstrating that he quit as a reasonably
    foreseeable   consequence   of  the   employer's
    discriminatory actions.

        A constructive discharge arises only when a
    reasonable person would find the conditions of
    employment intolerable. To act reasonably, an
    employee has an obligation not to assume the
    worst and not to jump to conclusions too
    quickly. An employee who quits without giving
    his employer a reasonable chance to work out a
    problem has not been constructively discharged.

Tidwell, 93 F.3d at 494 (citations omitted) (emphasis
added).

    At bottom, Summit's evidence does not establish that
the Company acted with the intention of forcing Summit to
resign or that a reasonable person would have found her
conditions of employment intolerable.         First, her
transfer to the second shift, complete with temporary
employees and defective parts, is indistinguishable from
Tidwell. In Tidwell, the plaintiff's work assignment was
changed and no constructive discharge was found. Id. at
496 ("Dissatisfaction with a work assignment is, as a
matter of law, normally not so intolerable as to be a


                           -19-
basis for constructive discharge." (citing Carter v.
Ball, 33 F.3d 450, 459 (4th Cir. 1994) ("Dissatisfaction
with work assignments, a feeling of being unfairly
criticized, or difficult or unpleasant working conditions
are not so intolerable as to compel a reasonable person
to resign."))).




                           -20-
    Second, Summit's stress--caused by her inability to
improve productivity, two previous reprimands, having a
less experienced employee promoted to a position
immediately over her, and the threat of discharge--does
not automatically translate into constructive discharge.
There is no evidence that sex discrimination, rather than
performance    problems,    prompted   the    reprimands.
Furthermore, Hoffman's promotion over Summit does not
constitute constructive discharge.    Simply put, merely
because Summit "lost a single promotion opportunity to an
arguably better qualified candidate, the overwhelming
compulsion to quit that is necessary for constructive
discharge [was] not created." Tidwell, 93 F.3d at 495.



    This Court has not directly ruled on whether the mere
threat of being discharged for cause would lead a
reasonable person to find his or her conditions of
employment intolerable. We hold that an employee's being
told that he or she will be fired for cause does not, in
and of itself, constitute constructive discharge. See
Hill v. St. Louis Univ., 923 F. Supp. 1199, 1209 (E.D.
Mo. 1996) ("The only basis for [plaintiff's] claim of
constructive discharge is that on December 1, 1993 she
was told that unless she resigned, she would be
terminated. Plaintiff offers no legal support for her
contention that notice of termination and choosing to
resign instead is a 'constructive discharge'.       It is
clear that it was not her working conditions that
'forced' plaintiff to resign, but rather being informed
that she was being terminated from her employment.
Consequently, merely being informed of termination cannot
constitute a 'constructive discharge'."); but cf. Downey

                           -21-
v. Southern Natural Gas Co., 649 F.2d 302, 305 (5th Cir.
1981) (holding that an employee being apparently singled
out and told his company had nothing for him to do and
that he was in danger of being discharged and losing
retirement benefits created a sufficiently contested
issue of material fact to make summary judgment on the
employee's age discrimination claim improper).

    Third, Summit's statistical evidence creates only the
weakest inference that the Company acted with the
intention of forcing Summit to resign and provides no
support




                           -22-
for a finding that a reasonable person would have found
Summit's conditions of employment intolerable.

    Therefore, because the jury's verdict was not
supported by substantial evidence, the district court
properly granted the Company's motion for judgment
notwithstanding the verdict.

                                       III.

    Summit next argues that the district court erred in
limiting the evidence that Summit could present regarding
the Company's actions taken prior to the 180-day window
of the EEOC charge.3 Citing Hawkins v. Hennepin Technical
Center, 900 F.2d 153 (8th Cir. 1990) (granting new trial
when, although sexual harassment was not
charged, plaintiff should have been permitted to
introduce additional evidence regarding specifics of such
harassment), and Estes v. Dick Smith Ford, Inc., 856 F.2d
1097 (8th Cir. 1988) (holding that background evidence
about defendant's work force was admissible, although
plaintiff presented an individual disparate treatment
case, rather than a disparate impact case), Summit notes
that other acts of discrimination outside the charge
period are properly admissible as general background


      3
        We note that August 19, 1994, was 180 days prior to the date Summit filed her
EEOC charge. The only evidence that the district court excluded prior to that date
related to the alleged sexual harassment in 1988. The district court allowed Summit to
introduce evidence prior to the window of the EEOC charge. This evidence included:
Summit's satisfactory employee survey done in the summer or fall of 1993; the
warnings given in March and August 1994; and the transfer to second shift in June
1994.

                                        -23-
information and are relevant in deciding whether or not
the acts complained about during the charge period are
more likely to have occurred than not.     Specifically,
Summit asserts that the district court erred by limiting
Summit's presentation of evidence concerning sexual
harassment by Saterfeil in 1988. We disagree.




                          -24-
    The trial court's exclusion of evidence is entitled
to substantial deference on review.    See Hawkins, 900
F.2d at 155. The district court excluded the evidence
because it was not actionable due to Summit's failure to
file a timely EEOC charge, see 42 U.S.C. § 2000e-5(e)(1)
("A charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful
employment practice occurred . . . ."), and because it
was too remote.

    Although a "blanket evidentiary exclusion" of
background information would be "especially damaging in
employment discrimination cases," Estes, 856 F.2d at
1103, that is not the case here. Rather than a blanket
exclusion, the district court excluded only the
allegations regarding sexual harassment in 1988 and
admitted the balance of Summit's background information.
In fact, all of the alleged actions of the Company--the
reprimands, Summit's transfer, the threats of being
fired--took place 180 days prior to Summit's EEOC claim.
Moreover, although the evidence that Summit was sexually
harassed in 1988--six years prior to her alleged
constructive discharge--may have some slight relevance in
showing motive, this evidence does nothing to show that
in 1994 a reasonable person would have been compelled to
quit.

    Lastly, the cases relied upon by Summit are
distinguishable. In Hawkins, the excluded evidence had
greater relevance because that case involved a claim of
discrimination   and  unlawful   retaliation  following
complaints of sexual harassment, rather than a claim of
constructive discharge. See Hawkins, 900 F.2d at 153.

                           -25-
Similarly, in Estes the plaintiff was not asserting a
claim of constructive discharge as he was discharged by
his employer. See Estes, 856 F.2d at 1100.

    Therefore, we hold that the district court properly
excluded the presentation of evidence concerning sexual
harassment in 1988.




                          -26-
                          IV.

    Summit also argues that the district court erred by
failing to instruct the jury on punitive damages.    We
disagree.

     Under Title VII, punitive damages may be recovered
"if   the complaining party demonstrates that the
respondent engaged in a discriminatory practice or
discriminatory practices with malice or with reckless
indifference to the federally protected rights of an
aggrieved individual." 42 U.S.C. § 1981a(b)(1) (1994).
Even assuming that there was sufficient evidence for a
jury   to conclude that the Company intentionally
discriminated against Summit, there was not sufficient
evidence of malice or reckless indifference to submit a
punitive damages instruction to the jury.

                          V.

    Accordingly, the judgment of the district court is
affirmed.

    A true copy.


        Attest:


            CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                          -27-
