                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 99-1627WM
                                  _____________

Vera Sims,                             *
                                       *
            Appellant,                 *
                                       * On Appeal from the United
      v.                               * States District Court
                                       * for the Western District
                                       * of Missouri.
Health Midwest Physician Services      *
Corporation, a Missouri Corporation,   *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: September 15, 1999
                                 Filed: November 10, 1999
                                  ___________

Before RICHARD S. ARNOLD, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


       Vera Sims brought this action for sexual harassment and retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Missouri Human
Rights Act, Mo. Ann Stat. § 213.010 et seq. She advanced two theories of liability for
sexual harassment: (1) that her employer, Health Midwest Physician Services
Corporation, was vicariously liable for harassment perpetrated by one of her
supervisors, the physician for whom she worked; and (2) that Health Midwest was
liable on a negligence theory because it knew or should have known of the harassment
and failed to take appropriate remedial action. She also claimed that the defendant
retaliated against her for complaining about the harassment. The District Court granted
summary judgment for the defendant on all claims. The central issue on appeal is
whether someone in authority at Health Midwest knew about the claim of harassment
during the relevant time period. We hold that Ms. Sims presented sufficient evidence,
at the summary-judgment stage, to create a genuine issue of material fact on this
question. She is therefore entitled to a trial on her vicarious-liability and negligence
theories. As to retaliation, however, we agree with the District Court and affirm its
dismissal of this aspect of the complaint.

                                           I.

        In reviewing a grant of summary judgment, we apply the same standard used by
the District Court: whether there is a genuine issue of material fact, and whether the
moving party is entitled to a judgment as a matter of law. We briefly outline the facts
of the case, resolving all genuine factual disputes and drawing all reasonable inferences
in favor of Ms. Sims.

      Vera Sims, the plaintiff, is a licensed practical nurse employed by defendant
Health Midwest. In 1988, Ms. Sims began employment at Midwest Internal Medicine
Associates (MIMA), a clinic acquired by Health Midwest in 1992. She was the nurse
for Dr. Richard Harlow, who began employment at MIMA in 1984. Ms. Sims
presented evidence to the District Court that Dr. Harlow sexually harassed her from
May of 1993 until August of 1995. After this first period of sexual harassment, the
harassment ceased for over a year, mainly due to Ms. Sims's marriage and her leave of
absence from work for surgery. The plaintiff returned to work in September of 1996.
Ms. Sims stipulated that she is not seeking recovery for any sexual harassment by Dr.
Harlow that occurred before September 26, 1996. The plaintiff testified in her


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deposition that after she returned to work, a second period of sexual harassment began
in October of 1996. App. 535.

       Ms. Sims presented evidence that some of her co-employees discussed Dr.
Harlow's inappropriate conduct towards her, including unwanted touching. One of the
employees who heard, or was engaged in, such discussions was Michelle Aman. Ms.
Aman was a receptionist at MIMA prior to 1994, but was promoted to Front Office
Coordinator in January of 1995. In February of 1995, Kay Hensley, MIMA clinic
manager, held a staff meeting and announced Ms. Aman's promotion. During this
meeting, Ms. Hensley told MIMA employees that because she was supervising three
clinics and could be at MIMA only about one day a week, they should address any
problems to Ms. Aman when she, Ms. Hensley, was away from the clinic.

       As we have noted, the relevant time period is between September 26, 1996, and
January 15, 1997. We shall detail later in this opinion the evidence relevant to the
question whether anyone in authority at Health Midwest knew about claims of
harassment during this time period. Events finally came to a head on January 15, 1997.
On that day, Dr. Harlow approached Ms. Sims and told her to come to his office at
12:30 that afternoon because he believed that she needed a massage and he wanted to
give her one. On the same day, Ms. Sims told Ms. Aman that she could not hide from
Dr. Harlow anymore, and "It's moved on from the kissing to now, you know, he's
putting his penis on my butt and I'm in a panic and I've got to make him stop." App.
642. Ms. Sims asked Ms. Aman to help her set Dr. Harlow up so that he would
become so embarrassed that he would leave her alone. Ms. Sims's plan was for Ms.
Aman to enter Dr. Harlow's office five minutes after she had entered it at 12:30 p.m.
and catch them in a sexually compromising position. As planned, Ms. Sims went to
Harlow's office and engaged in sexual contact with him, all the while awaiting Ms.
Aman's entry into the room to catch them. Ms. Aman tried to enter the office as
planned; however, she could not open the door because Dr. Harlow had locked it.


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       After the failure of this "set-up" incident on January 15, Ms. Sims asked Ms.
Aman to speak to Dr. Harlow. Ms. Aman replied that she was too scared to speak to
him, but she did report Ms. Sims's complaint of sexual harassment to Ms. Hensley the
next day. It is undisputed that Ms. Hensley did not receive actual knowledge of Dr.
Harlow's behavior until January 16, 1997. After Ms. Aman reported Dr. Harlow's
behavior, Ms. Hensley informed vice-president Debra Hartman of Ms. Sims's complaint
of sexual harassment. Ms. Hensley arranged for a meeting for herself, Ms. Hartman,
and Ms. Sims to discuss the complaint the following Tuesday, January 21, 1997. After
the January 21st meeting, Ms. Hensley and Ms. Hartman advised Dr. Harlow that a
complaint of sexual harassment was filed by an employee, and Health Midwest began
an investigation into Ms. Sims's complaint. No more sexual harassment by Dr. Harlow
toward Ms. Sims took place.

       On January 28, 1997, Dr. Harlow asked Ms. Sims about her complaint. After
this confrontation, Ms. Sims called Ms. Hensley and told her that she could no longer
work with Dr. Harlow. Ms. Sims agreed to transfer to another Health Midwest clinic
and was assigned to Dr. Mary Ellen McGinnis. On February 20, 1997, Health Midwest
president Steve Johns issued a formal letter of reprimand to Dr. Harlow. Upon receipt
of the written reprimand, Dr. Harlow resigned, effective May 31, 1997.

                                          II.

       Ms. Sims first argues that the District Court erred in ruling that Health Midwest
could not be vicariously liable for Dr. Harlow's sexual harassment of her. Ms. Sims
contends that Health Midwest is liable because Dr. Harlow was her supervisor with
immediate or successively higher authority over her, and Health Midwest did not satisfy
its burden of proof on its affirmative defense as a matter of law.

      Health Midwest can be subject to "vicarious liability to a victimized employee
for an actionable hostile environment created by a supervisor with immediate (or

                                          -4-
successively higher) authority over the employee." Burlington Industries, Inc. v.
Ellerth, 118 S. Ct. 2257, 2270 (1998). Furthermore, mere "intersexual flirtation" is not
enough to violate the statute. Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct.
998, 1003. "The prohibition of harassment on the basis of sex requires neither
asexuality nor androgyny in the workplace; it forbids only behavior so objectively
offensive as to alter the 'conditions' of the victim's employment." Ibid.

       The District Court concluded that Ms. Sims presented sufficient facts to
overcome summary judgment as to whether Dr. Harlow was her supervisor for
purposes of holding Health Midwest vicariously liable for his conduct. We agree. Yet
despite this determination, 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. Burlington, 118 S. Ct. at 2270. We agree with the
District Court that Ms. Sims's evidence failed to demonstrate that she suffered any
tangible employment action that would preclude application of Health Midwest's
affirmative defense.

       A conclusive determination of whether Health Midwest proved its affirmative
defense and is entitled to judgment as a matter of law cannot be made until we first
address two issues: (1) whether Ms. Aman was delegated the authority to deal with
sexual-harassment claims, and (2) whether Dr. Harlow's treatment of Ms. Sims, during
the relevant time period (October of 1996 to January 15, 1997), was brought to the
attention of Ms. Aman.

       The resolution of these two issues is important to the determination of whether
an issue of material fact exists on the affirmative defense. If the Health Midwest
sexual-harassment policy required employees to report sexual harassment to their
supervisor (who Ms. Sims admitted was Ms. Hensley); if Ms. Hensley delegated her
authority to receive sexual-harassment complaints to Ms. Aman with the requirement
that Ms. Aman report the complaints to Ms. Hensley or take other appropriate action;

                                          -5-
and if the sexual harassment was brought to the attention of Ms. Aman during the
relevant time period, but Ms. Aman failed to act; then there are issues of material fact
as to whether Health Midwest is liable for Ms. Aman's inaction. An employer may be
responsible for the consequences of sexual harassment if information about the
harassment came "to the attention of someone who (a) has under the terms of his
employment, or (b) is reasonably believed to have . . . a duty to pass on the information
to someone within the company who has the power to do something about it. . .."
Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997); Torres v. Pisano, 116 F.3d
625, 636-38 (2nd Cir. 1997).

      Health Midwest's sexual-harassment policy stated, in part:

      If you have a complaint of sexual harassment, you should discuss the
      matter with your supervisor. If for some reason you feel you cannot
      discuss the situation with your supervisor, contact the Employment
      Manager. You may use the Complaint Procedure to bring a complaint of
      sexual harassment to the attention of management. You will not receive
      unfavorable treatment for presenting a complaint of sexual harassment.


App. 188, 193. It also provided:


      Employees who become aware of sexual harassment against another
      employee should bring the matter to the attention of his/her supervisor or
      the Director of Human Resources for HMPSC.


App. 195.

      As to the issue of delegated authority, the District Court concluded that the
record could not support a finding that Ms. Aman had been given the authority to act
on sexual-harassment claims or that employees were instructed to file official

                                          -6-
complaints with Ms. Aman. We disagree. In Ms. Aman's handwritten notes, she stated
that she "had an obligation to report the incident as [Sims's] acting supervisor," App.
155; and in her deposition, Ms. Aman testified that as on-site supervisor, she had a
responsibility to go to Ms. Hensley. App. 300. Ms. Aman testified that she had
supervisory responsibilities with regard to Ms. Sims, App 306; that she was referred
to as the "on-site supervisor," App. 292; that she believed it was her responsibility to
try to defuse the situation with Ms. Sims and Dr. Harlow, App. 293; and that she was
to report "any problem" to Ms. Hensley, App. 281. In addition, Ms. Hensley admitted
that if Ms. Aman had knowledge that Ms. Sims was being sexually harassed, it would
have been Ms. Aman's responsibility to bring the complaint to her attention, as Ms.
Aman was her "eyes and ears" in the office. App. 432. Ms. Hensley also testified that
she had a meeting with the MIMA employees and told them that Ms. Aman would be
the on-site person to deal with problems for patients and employees, App. 427, and that
it was within Ms. Aman's authority to take care of employee problems, App. 428. This
evidence is enough to create a genuine issue of fact on the question whether Ms. Aman
was set up as a point person to accept sexual-harassment complaints, in order to
channel the complaints to Ms. Hensley or otherwise handle them. "If the employer has
structured its organization such that a given individual has the authority to accept notice
of a harassment problem, then notice to that individual is sufficient to hold the employer
liable." Williamson v. City of Houston, Tex., 148 F.3d 462, 467 (5th Cir. 1998).

       Despite our determination that Ms. Sims presented a genuine issue of material
fact as to Ms. Aman's delegated authority, we must also examine whether Ms. Sims
presented sufficient evidence to overcome summary judgment as to whether Dr.
Harlow's alleged sexually harassing behavior was brought to the attention of Ms. Aman
during the relevant time period.

        The plaintiff admitted that she did not go to Ms. Aman during the relevant period
of October 1996 through January 15, 1997, and say "I want to file a grievance, I want
to file a complaint against him, it's just wrong what he's doing." App. 117-118. Our

                                           -7-
examination, however, does not end there. Notification of sexual harassment to an
employer need not come solely from the victim of the harassment for knowledge to be
imputed to the employer. See Varner v. National Super Markets, Inc., 94 F.3d 1209,
1213 (8th Cir. 1996), cert. denied, 519 U.S. 1110 (1997) (there is no significance in the
fact that sexual harassment was reported by a co-worker of the victim, rather than by
the victim herself). The holding of Young v. Bayer Corp., supra, 123 F.3d at 674, that
employer liability could attach if information of the harassment had "come to the
attention of" someone who is reasonably believed to have a duty to pass on the
information does not require that the victim of the harassment be the source of the
information. Health Midwest's own sexual-harassment policy provided that any
employee who "becomes aware of sexual harassment against another employee" should
bring the matter to the attention of his or her supervisor. App. 195.

        Connie Shepard, a co-worker of Ms. Sims, testified that she spoke with Ms.
Aman about Dr. Harlow and Ms. Sims more than two times during the relevant time
period. App. 504. Ms. Shepard testified that two months before January 15, 1997, Ms.
Sims told her that Dr. Harlow was "offering to give her back rubs, that he had tried to
kiss her in his office, the same things that had repeatedly happened over the years," and
Ms. Shepard went to Ms. Aman and told her of Dr. Harlow's behavior of "coming on
to" Ms. Sims and that it needed to stop. App. 507. Ms. Shepard testified, "I told her,
I said, 'Michelle, this has got to stop. It's hurting everybody in the office. You know,
it's got to stop.' And she agreed. But, you know, she also pointed out that we had
never really seen anything." Id. Additionally, Linda Regan, a MIMA receptionist,
testified in her deposition that Ms. Aman engaged in discussions about Ms. Sims and
Dr. Harlow during the relevant time period of October of 1996 through January of
1997, App. 475; and after Ms. Sims returned from surgery in September of 1996, Ms.
Shepard asked Ms. Aman, "Is Dr. Harlow bothering Vera, is that why she's acting this
way?" App. 472. This evidence would support a finding that Health Midwest, through
its agent Ms. Aman, was aware of Dr. Harlow's behavior during the relevant time
period.

                                          -8-
      Having resolved these issues, we now determine whether Health Midwest
proved its affirmative defense and is entitled to judgment as a matter of law on Ms.
Sims's vicarious liability claim. Health Midwest must prove two elements in its
affirmative defense:

      (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, 118 S. Ct. at 2270; Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2293
(1998).

       As to the first element of the defense, the District Court stated that "[i]f Aman's
knowledge is imputed to defendant, then the Court cannot state as a matter of law that
defendant's response to the alleged harassment was adequately prompt and reasonable
so as to grant summary judgment in favor of defendant." App. 779. We agree.
Because there are material issues of fact on the first element of the defense, it is not
necessary that we address the second element. We reverse the District Court's grant
of summary judgment on Ms. Sims's vicarious-liability claim, because there are genuine
issues of fact regarding Ms. Aman's role and whether her knowledge of harassment can
be imputed to Health Midwest.

                                            III.

      Ms. Sims next argues that the District Court erred in granting summary judgment
on her negligence claim because she presented evidence sufficient to overcome
summary judgment as to whether Health Midwest, through Michelle Aman, had actual
knowledge of Dr. Harlow's sexual harassment of her during the relevant period and

                                           -9-
failed to take immediate and appropriate action to end the harassment prior to Ms.
Aman's finally reporting it to Ms. Hensley on January 16, 1997. The question is
whether the employer knew or should have known of the harassment and failed to
remedy it. If authorized agents with a reporting duty (or persons reasonably believed
to have such a duty) acquire knowledge of sexual harassment, then the corporation
acquired such knowledge. See Young v. Bayer Corp., 123 F.3d 672, 674-75 (7th Cir.
1997). Because Ms. Sims presented an issue of fact as to Ms. Aman's knowledge that
Ms. Sims was being harassed, we reverse the District Court's grant of summary
judgment on her negligence claim.

                                           IV.

       Ms. Sims next argues that the District Court erred in granting summary judgment
on her claim of retaliation. Ms. Sims maintains that she was subjected to the following
adverse employment actions: (1) she was forced to transfer to another clinic; (2) she
was not permitted to return to MIMA on the days when her assigned physician worked
at MIMA; (3) she received verbal counseling for making a personal phone call during
work and a written warning about another personal call; and (4) she was marked down
on her performance evaluation. In order to establish a claim of Title VII retaliation,
Ms. Sims must show participation in a protected activity, subsequent adverse action by
the employer, and a causal connection between the two. The employment action must
have had a materially adverse impact on the terms or conditions of employment.

       We agree with the District Court that Ms. Sims failed to show any materially
adverse employment action. Ms. Sims voluntarily transferred into an identical position
with the same salary, title, and overall responsibilities. As the District Court pointed
out, Ms. Sims's transfer was not even listed as a retaliatory act in her amended
complaint. The fact that she was told that she could not visit MIMA with her new
doctor does not rise to the level of Title VII retaliation. Although one of her
evaluations was marked down, it was later raised by Dr. McGinnis. In addition, the

                                         -10-
written warning Ms. Sims received was given only after she had been verbally
counseled about making personal phone calls during work hours. Furthermore, Health
Midwest provided legitimate, non-retaliatory reasons for its actions, and Ms. Sims
offered no substantial evidence to rebut those reasons as being pretextual. Therefore,
Ms. Sims's Title VII retaliation claim fails as a matter of law.

                                         V.

     For the reasons stated above, we reverse the District Court's grant of summary
judgment on Ms. Sims's vicarious-liability and negligence claims and affirm the
summary judgment on the Title VII retaliation claim.

      A true copy.

             Attest:

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




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