                    United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 98-1338
                                 ________________

Sandra Breeding,                          *
                                          *
             Appellant,                   *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      Eastern District of Missouri.
Arthur J. Gallagher and Co.,              *
                                          *
             Appellee.

                                 ________________

                                 Submitted: September 25, 1998
                                     Filed: January 15, 1999
                                 ________________

Before RICHARD S. ARNOLD, BEAM, and HANSEN, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

      Sandra Breeding appeals the district court's grant of summary judgment in favor
of Arthur J. Gallagher and Co. (Gallagher) in this employment discrimination case.
We affirm in part and reverse in part.

                                         I.

        Viewing the evidence in the light most favorable to Ms. Breeding, as we must
in this summary judgment context, the record includes the following: Gallagher hired
Ms. Breeding as a Customer Service Representative (CSR) in 1986. She was 42 years
old at that time. In 1990, the company purchased another firm and integrated a large
number of managers from the newly acquired firm into Gallagher's existing business,
including Don Chase and Sandy Gross who became Ms. Breeding's new supervisors.
Other supervisors in the hierarchy above Ms. Breeding during the relevant time period
were Joel Caveness, Lance Carlson, and James Agnew. Ms. Breeding contends that
from that point on, the company developed a hostile atmosphere of discrimination in
which she was often yelled at and unfairly criticized. On her 1990 performance
evaluation, she wrote that she felt she was being singled out because she was the oldest
CSR. (Appellant's App. at 145.) She complains that supervisors Caveness and Carlson
failed to address this concern and even asked her to take back the statement.

       Ms. Breeding contends that her supervisor, Don Chase, used offensive language,
made sexually inappropriate comments, and fondled his genitals in front of her on a
continuous basis. In her deposition testimony, she asserts that she "talked to Sandy
[Gross] about it, and she said that is just the way he is." (Id. at 64.) Ms. Breeding
complains that Chase treated young, attractive CSRs more favorably than he treated her.
Ms. Breeding also asserts that Chase denied her a promotional opportunity by hiring
a young male, John Bickel, instead of Ms. Breeding to fill the position of Ms. Debbie
Ferger, a woman for whom Ms. Breeding had done some work in the past. Ms.
Breeding was required to do work for Bickel from time to time, but she was unable to
get along well with him. Ms. Breeding contends that Mr. Chase yelled at her for not
getting along with Bickel. Once in 1992, he told her he thought the reason Ms.
Breeding and Mr. Bickel did not get along was that Ms. Breeding was old enough to
be Bickel's mother.

        Ms. Breeding contends that she was denied raises from 1992 until her resignation
in 1995. She states that she is unaware of any other CSR who did not receive yearly
raises, but the record shows that she was not evaluated in 1993 and that 15 others were
also denied raises in 1994. Ms. Breeding complains that she was held to a stricter

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performance level than other younger CSRs. She contends that she was treated
severely for committing minor typographical and accounting errors, for her lack of
knowledge about the insurance business, and for her trouble handling various computer
programs. She complains that she was denied training and did not have a computer
until her last six months on the job. She says her supervisors' conduct was not merely
critical, but demeaning and threatening, and that the younger employees were given
more training and more opportunities.

      Ms. Breeding presents affidavits of other CSRs, who assert they were also
subject to a discriminatory atmosphere and felt that the company was hostile toward
women. One CSR asserted that Area President James Agnew met with the CSRs once
a year to ask how the company could make things better at work, and while many
complained about treatment by their managers and supervisors (including Don Chase),
Agnew failed to investigate or seek to remedy their complaints. She also overheard
Joel Caveness say that he had "hired one CSR because she had nice legs." (Appellant's
App. at 102.)

        In a meeting on July 14, 1995, Ms. Breeding says Sandy Gross and Joel
Caveness confronted her with and berated her for her typing errors and for not getting
along with certain people. She asserts that at one point, Caveness asked, "'How much
longer do you want to work? . . . [W]e know you are old and you are not going to be
here that much longer.'" (Appellant's App. at 71.) She left the meeting in tears and
returned the following Monday with her resignation letter. In the letter, she stated that
she was resigning due to "constant badgering" about typographical errors, bookkeeping
errors, and personality conflicts; and because she was not properly trained, did not have
an up-to-date computer terminal, and did not get a raise. Additionally, her resignation
letter complained of Don Chase's statement that she was old enough to be Bickel's
mother. Ms. Breeding's resignation letter concluded with the following statement: "I
have had enough harrassment [sic] and discrimnation [sic] that my health can take
[sic]." (Id. at 163.) After presenting this letter, she was escorted to her car by Sandy

                                           3
Gross, who said that "[s]he was told to do these things to [Ms. Breeding]." (Id. at 83.)



       Ms. Breeding brought suit against Gallagher, alleging employment
discrimination on the basis of her sex and age, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000(e)-2(a) (1994); the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 623(a) (1994); and the Missouri Human Rights
Act (MHRA), Mo. Ann. Stat. § 213.055 (West 1996). Specifically, she alleged
discriminatory treatment, a hostile work environment, and constructive discharge due
to intolerable working conditions. Gallagher moved for summary judgment, and the
district court granted the motion, concluding that Ms. Breeding had not presented
sufficient evidence to reasonably support her claims. Ms. Breeding appeals.

                                          II.

       We review de novo a grant of summary judgment, using the same standards as
the district court applied. Lynn v. Deaconess Med. Ctr.-West Campus, 160 F.3d 484,
486 (8th Cir. 1998). "Summary judgment is proper if the evidence, viewed in the light
most favorable to the nonmoving party, demonstrates that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of
law." Id.; Fed. R. Civ. P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). Summary judgment seldom should be granted in discrimination
cases where inferences are often the basis of the claim, and "summary judgment should
not be granted unless the evidence could not support any reasonable inference" of
discrimination. Lynn, 160 F.3d at 486-87.

      Title VII makes it unlawful for an employer to discriminate against an employee
on the basis of, among other things, the individual's sex. 42 U.S.C. § 2000e-2(a)(1).
See Oncale v. Sundown Offshore Servs., Inc., 118 S. Ct. 998, 1001 (1998). The ADEA
makes it unlawful for employers to discriminate on the basis of an individual's

                                           4
age if that individual is over 40 years old. 29 U.S.C. §§ 623(a)(1), 631(a). See also
Denesha v. Farmers Ins. Exch., Nos. 97-4373/97-4374, 1998 WL 762521 at *3 (8th
Cir. Nov. 3, 1998). "Our analysis is the same for both the state and federal claims
because decisions under the various federal employment discrimination statutes are
applicable and authoritative under the Missouri Human Rights Act as well as federal
law." Finley v. Empiregas, Inc. of Potosi, 975 F.2d 467, 473 (8th Cir. 1992) (internal
quotations and citation omitted)).

        Ms. Breeding first contends that she has made out a submissible case of sex and
age discrimination under either the direct evidence framework of Price Waterhouse v.
Hopkins, 490 U.S. 228, 258 (1989), or the indirect evidence, burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
"When a plaintiff puts forth direct evidence that an illegal criterion, such as age [or
sex], was used in the employer's decision to terminate the plaintiff," we apply the
standards enunciated in Price Waterhouse v. Hopkins, as modified by § 107 of the Civil
Rights Act of 1991, 42 U.S.C. § 2000e-2(m). Fast v. Southern Union Co., 149 F.3d
885, 889 (8th Cir. 1998). Under this modified Price Waterhouse standard, a defendant
is liable for discrimination upon proof by direct evidence that an employer acted on the
basis of a discriminatory motive, and proof that the employer would have made the
same decision absent the discriminatory motive is only relevant to determining the
appropriate remedy. See id.

        When a plaintiff is unable to put forth direct evidence of age or sex
discrimination, we apply the burden-shifting analysis of McDonnell Douglas, which
first requires the plaintiff to demonstrate a prima facie case of discrimination. Id. at
890; see also Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 n.5 (8th Cir.
1996) (explaining that we apply this framework in both Title VII cases and in the
ADEA context). The elements of a prima facie case are not inflexible and vary slightly
with the specific facts of each case. Hindman v. Transkrit Corp., 145 F.3d 986, 990-91
(8th Cir. 1998). Ms. Breeding must demonstrate (1) that she is within the protected

                                           5
class; (2) that she was qualified to perform her job; (3) that she suffered an adverse
employment action; and (4) that nonmembers of her class (persons under 40 in the
ADEA context or of the opposite gender in the Title VII sex discrimination context)
were not treated the same. See Kneibert v. Thomson Newspapers, Michigan Inc., 129
F.3d 444, 451 n.4 (8th Cir. 1997) (defining the prima facie case in the ADEA context);
Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 614 (8th Cir. 1998) (defining the prima
facie case in Title VII context). The burden then shifts to the employer to demonstrate
a legitimate, nondiscriminatory reason for the adverse employment action. See Fast,
149 F.3d. at 890. If the employer articulates such a reason, the plaintiff must then
demonstrate that the employer's stated reason is pretextual and that the real reason for
the employer's adverse employment action was unlawful age or sex discrimination. See
id.; Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995). "In
differentiating between direct and indirect evidence of age discrimination, we must, in
part, distinguish comments which demonstrate a discriminatory animus in the decisional
process from stray remarks in the workplace, statements by nondecisionmakers, or
statements by decisionmakers unrelated to the decisional process." Fast, 149 F.3d at
889 (internal quotations and citations omitted).

       Ms. Breeding contends that the following nine incidents amount to direct
evidence of sex and age discrimination: (1) Susan Baskett observed that Gallagher hires
female CSRs who are young and attractive; (2) Bridget Hawkins stated that she
recommended a male for a vacant CSR position but Sandy Gross said, "I'd be afraid to
hire a male for a CSR position, because he would be likely to advance too quickly;" (3)
Bridget Hawkins described an incident where Area President Jim Agnew joked that he
liked to keep the women subservient, and Hawkins asserted she was treated less
favorably after she complained about the conduct; (4) Kathy Papcun said one hiring
manager, Joel Caveness, stated he hired a CSR because she had nice legs; (5) Papcun
also said she heard male managers joke to Sandy Gross that she should hire pretty, tall,
blonde girls; (6) Sandy Gross stated her supervisor, Joel Caveness, wanted to know
whether job applicants were attractive; (7) Ms. Breeding stated her supervisor, Don

                                           6
Chase, became angry that she was not getting along with Bickel and wondered aloud
whether it was because she was old enough to be Bickel's mother; (8) at the final
meeting between Ms. Breeding, Sandy Gross, and Joel Caveness, Caveness asked how
much longer she wanted to work, because "we know you are old and not going to work
here much longer;" and (9) as Sandy Gross escorted Ms. Breeding to her car after she
resigned, Gross said she was "told to do these things" to Ms. Breeding.

        We conclude that Ms. Breeding has not presented a submissible case of either
direct or indirect evidence of either age or sex discrimination against her, because she
has not demonstrated that she suffered any adverse employment action.1 None of the
statements listed above in support of her claims were related to any decisional process
that adversely affected Ms. Breeding's employment. To demonstrate that she suffered
an adverse employment action, Ms. Breeding asserts that she was treated more harshly
than men or the younger CSRs (all of whom were women) for typographical errors,
accounting errors, and socializing, and that she was not allowed to take vacation time
to care for her injured son. The record, however, shows that she was allowed to take
all of her vacation time when she wanted it (see Supp. App. at 174-75), that all CSRs
were criticized for socializing (see Appellant's App. at 95), and that she was merely
speculating or assuming that younger CSRs had not been criticized for typographical
and accounting errors (see Supp. App. at 250). Ms. Breeding's performance evaluations
consistently indicate she lacked knowledge in the field, lacked technical skill, and failed
to meet her training objectives. Ms. Breeding complains that she was not properly
trained, but admits she did not go to the seminars and classes she was required to attend
and admits she committed typographical, grammatical, and




      1
        While a constructive discharge could satisfy the element of an adverse
employment action, we reject Ms. Breeding's constructive discharge claim later in
this opinion so there is no need to discuss it here. For the reasons stated below, the
evidence fails to support her claim of constructive discharge.
                                            7
bookkeeping errors. Ms. Breeding suffered no adverse actions other than being "yelled
at" for these errors that she admits making.

        Ms. Breeding also contends that she suffered an adverse employment action
when she was discriminatorily denied a promotion and salary increases. The one
instance in which she asserts she was denied a promotional opportunity was when John
Bickel (a young male right out of college) was hired to fill Debbie Ferger's position.
Ms. Breeding had applied for the position and thought she was the more qualified
candidate, despite performance evaluations that indicated concern over her lack of
knowledge and technical skills. Although Ms. Breeding was required to fill in and do
some of the duties of this position when Ms. Ferger was absent, she has not
demonstrated on this record that she was qualified for the position. See Lyoch, 139
F.3d at 614 (noting plaintiff must demonstrate she is qualified in order to make out a
failure-to-promote claim). The record contains no evidence to indicate that the decision
to hire Bickel was influenced by a discriminatory animus toward women rather than the
applicants' respective qualifications.

       Ms. Breeding asserts that she was discriminatorily denied a raise from 1992 until
she resigned in 1995. According to the record, Ms. Breeding received a raise in
October 1992 and was not evaluated again until January 1994, but she received a
substantial Christmas bonus in 1993. She did not receive a raise following her 1994
evaluation. Contrary to her assertion that she was the only employee who did not
receive a raise, fifteen others--including her supervisor Sandy Gross and the young
John Bickel--likewise received no raise in 1994. Ten of those fifteen employees were
males. Furthermore, none of the nine incidents or comments by supervisors listed
above in support of her claim of direct evidence are alleged to have any relation to the
salary decision-making process, and as such, they are stray remarks or isolated incidents
which do not raise an inference of discrimination. See Oncale, 118 S. Ct. at 1002
(noting in the Title VII context that a statement including a sex-related comment is not
evidence of discrimination unless persons of one sex are disadvantaged in the

                                           8
terms of their employment on the basis of their sex while members of the other sex are
not). Thus, Ms. Breeding's failure to receive a raise does not reflect a discriminatory
attitude on the part of Gallagher.

       Next, Ms. Breeding asserts she presented a submissible claim that Gallagher
subjected her to a hostile working environment due to her age and sex. The district
court's order was written without the benefit of the Supreme Court's latest enunciations
of the standards for an actionable hostile environment harassment case.

      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, see Fed. Rule Civ. Proc. 8(c). 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 Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of
Boca Raton, 118 S. Ct. 2275, 2292-93 (1998). Harassment based on an individual's
sex, in violation of Title VII, or age, in violation of the ADEA, is actionable when that
harassment is "so 'severe or pervasive' as to 'alter the conditions of the victim's
employment and create an abusive working environment.'" Faragher, 118 S. Ct. at
2283 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (other
internal quotations omitted); see also Oncale, 118 S. Ct. at 1001 (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To be actionable, harassment must be both
objectively and subjectively offensive, such that a reasonable person would consider
it to be hostile or abusive, and courts make this determination "by looking at all the
circumstances, including the frequency of the discriminatory conduct; its severity;


                                           9
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance." Faragher,
118 S. Ct. at 2283 (internal quotations omitted). "[S]imple teasing . . . offhand
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment." Id. (internal
quotations omitted). "[S]poradic use of abusive language, gender-related jokes, and
occasional teasing" are "the ordinary tribulations of the workplace," and as such, they
do not amount to actionable harassment. Id. at 2284 (internal quotations omitted).

       There is in this case insufficient evidence of harassment on the basis of age to
support a claim. The two specific age-related comments by supervisors Chase and
Caveness (one statement made in 1992 and the other in 1995) were isolated incidents
and were not sufficiently derogatory or demeaning to permit a finding that they altered
the terms of Ms. Breeding's employment. Ms. Breeding felt she was unfairly criticized
and often yelled at, but these conditions, while not desirable, do not amount to
actionable harassment on the basis of age.

       The sexual harassment hostile work environment claim presents a more troubling
scenario. Ms. Breeding asserts that her supervisor, Don Chase, fondled his genitals in
front of her and used lewd and sexually inappropriate language. She asserts that this
conduct was continuous while he was her supervisor. Ms. Breeding states that she
complained of Chase's conduct to another supervisor, Sandy Gross, and Gross
minimized the conduct stating, "that is just the way he is." (Appellant's App. at 64.)
Ms. Breeding presented affidavit testimony of other CSRs stating that they had
observed Chase's conduct and inappropriate sexual comments. See Howard v. Burns
Bros., Co., 149 F.3d 835, 838 (8th Cir. 1998) (noting "harassment of employees other
than the plaintiff [is] relevant to show pervasiveness of the hostile environment"). The
other CSRs had complained about such conduct to area vice president, James Agnew,
but he took no action. In his deposition, Agnew admitted that he had heard of
complaints about Chase's language and conduct of fondling himself. This type of

                                          10
conduct could be found by a jury to be sufficiently offensive to have altered Ms.
Breeding's working conditions. See Howard, 149 F.3d at 840 ("Once there is evidence
of improper conduct and subjective offense, the determination of whether the conduct
rose to the level of abuse is largely in the hands of the jury."). We cannot say that such
conduct is insufficient as a matter of law to constitute actionable sexual harassment.
Cf. Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 762 (8th Cir. 1998) (holding, "we
cannot say that a supervisor who pats a female employee on the back, brushes up
against her, and tells her she smells good does not constitute sexual harassment as a
matter of law"). Accordingly, we respectfully conclude that the district court erred by
granting summary judgment on Ms. Breeding's sexual harassment hostile environment
claim.

       Ms. Breeding's final claim is that she was constructively discharged. To show
"constructive discharge, a plaintiff must show more than just a Title VII violation by
her employer." Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998). "A
constructive discharge occurs when an employer renders the employee's working
conditions intolerable, forcing the employee to quit." Johnson v. Runyon, 137 F.3d
1081, 1083 (8th Cir.) (internal quotations omitted), cert. denied, 119 S. Ct. 264 (1998).
"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." Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir.
1997) (internal quotations omitted), cert. denied, 118 S. Ct. 1185 (1998). The intent
element is satisfied by a demonstration that quitting was "a reasonably foreseeable
consequence of the employer's discriminatory actions." Id. The employee has an
obligation to act reasonably by not assuming the worst and not jumping to conclusions
too quickly. Id. See also Howard, 149 F.3d at 841-42 (discussing recent cases defining
what type of conditions are intolerable for purposes of constructive discharge).




                                           11
       We conclude that the conditions of which Ms. Breeding complains, even if they
make out a basis for a sexual harassment hostile environment claim, do not amount to
sufficient evidence to support a finding of constructive discharge. We note again that
there is no evidence that age or sex discrimination, rather than actual performance
problems, prompted the reprimands and the poor performance evaluations. The
working atmosphere was not ideal, but "a feeling of being unfairly criticized or [having
to endure] difficult or unpleasant working conditions are not so intolerable as to compel
a reasonable person to resign." Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). There
is similarly no evidence that Ms. Breeding was denied a promotion on the basis of age
or sex, and in any event, losing a single promotional opportunity is not a sufficient
reason to quit or to constitute constructive discharge. See Summit, 121 F.3d at 421.
The two stray age-related comments (one made in 1992 and one made in 1995) were
not so demeaning or abusive as to demonstrate an intolerable working environment
intended to force Ms. Breeding to quit. Finally, although there may be evidence from
which a jury could find sexual harassment, we conclude that the facts alleged in this
case even when viewed in the light most favorable to Ms. Breeding are not so
intolerable that a reasonable person would be forced to quit.

                                          III.

      Accordingly, we reverse the district court's grant of summary judgment on Ms.
Breeding's sexual harassment hostile environment claim and affirm the grant of
summary judgment on all other claims.

RICHARD S. ARNOLD, Circuit Judge, concurring in part and dissenting in part.

      The Court today remands for trial plaintiff's hostile-work-environment claim
based on sexual harassment. I join this portion of the Court's opinion.




                                           12
     I also agree that the evidence on the age claim was insufficient to justify
submission to a jury.

       With respect to the constructive-discharge claim based on sex discrimination,
however, I respectfully dissent. When all of the evidence in this case is considered
together, including the incidents listed on pages 6 and 7, ante, and the grossly offensive
conduct attributed to Mr. Chase, I believe that a jury could rationally find that
Ms. Breeding was subjected to working conditions that no reasonable, self-respecting
woman should be expected to tolerate. It should be added, of course, that the testimony
about what Mr. Chase is supposed to have done is only an accusation at this stage. It
may be that the trier of fact, after hearing both sides, would not believe the accusation.
But that issue should go to the jury, in my view, on the constructive-discharge theory,
as well as the hostile-work-environment theory.

      A true copy.

             Attest:

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




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