                                                                        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       This order and judgment is not binding precedent, except under the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.


                                         -2-
      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.


                                         -3-
      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.




                                         -4-
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.


                                         -5-
      “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.


                                          -6-
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.


                                         -7-
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.’”


                                         -8-
      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.

                                         -9-
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),


                                          -10-
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




                                         -11-
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.


                                          -12-
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.


                                          -13-
      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



                                        -14-
      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”

                                         -15-
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.




                                         -16-
      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


                                         -17-
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


                                          -18-
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.


                                          -19-
              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.


                                           -20-
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




                                       -21-
