                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 98-2112WA
                                  _____________

Delores A. Stephens,               *
                                   *
                Appellant,         * Appeal from the United States
                                   * District Court for the Western
     v.                            * District of Arkansas.
                                   *
Rheem Manufacturing Company,       * [PUBLISHED]
                                   *
                Appellee.          *
                             _____________

                           Submitted: December 14, 1998
                               Filed: December 23, 1998
                                _____________

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
                          _____________

PER CURIAM.

       Delores A. Stephens appeals the district court’s grant of summary judgment to
Rheem Manufacturing Company (Rheem) on Stephens’s Title VII sexual harassment
claim and her related state law claims. Relying on our existing case law, the district
court granted summary judgment to Rheem because Stephens presented no evidence
that Rheem knew or should have known about the harassing behavior of Stephens’s
supervisor or that Rheem failed to take proper remedial action once notified of the
alleged harassment. See Callanan v. Runyun, 75 F.3d 1293, 1296 (8th Cir. 1996).
These factors are no longer controlling on the issue of Rheem’s liability however.
After the district court granted summary judgment and before oral argument, the
United
States Supreme Court decided Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257
(1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). In Ellerth and
Faragher, the Supreme Court held that an employer is vicariously liable for a
supervisor’s sexual harassment of an employee when the harassment results in a
tangible employment action such as discharge, undesirable reassignment, or demotion.
See Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2292-93; see also Newton v.
Cadwell Laboratories, 156 F.3d 880, 883 (8th Cir. 1998). The Court also held that
absent a tangible employment action, the employer will be vicariously liable to the
employee for an actionable hostile work environment created by a supervisor, unless
the employer can prove by a preponderance of the evidence a two-part affirmative
defense. See Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2293; see also
Newton, 156 F.3d at 883.

        Because the district court did not decide whether Stephens suffered a tangible
employment action, we reverse the grant of summary judgment and remand to give
Stephens the opportunity to show she has a claim for which Rheem is vicariously
liable. See Newton, 156 F.3d at 883-84. If Stephens cannot demonstrate she suffered
a tangible employment action but can show her supervisor’s conduct created an
actionable hostile work environment, Rheem will be entitled to present an affirmative
defense to the hostile work environment claim. See id. We also reverse the grant of
summary judgment on Stephens’s state law claims and remand them for further
consideration by the district court.

      A true copy.

             Attest:

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




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