                            United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT



           ___________

           No. 96-3710
           ___________

Joe Earl Manning, Jr.,                    *
                                          *
              Plaintiff/Appellant,        *
                                          *
Tomi Foust, Constance A. Pritchett,       *
                                          *
              Plaintiffs,                 *
                                          *
Gerald M. Elliott,                        *    Appeals from the United States
                                          *    District Court for the
              Plaintiff/Appellant,        *    Eastern District of Arkansas.
                                          *
Cheryl V. Miller, Becky C. Smith,         *
Deborah D. Williams,                      *
                                          *
              Plaintiffs,                 *
                                          *
      v.                                  *
                                          *
Metropolitan Life Insurance               *
Company, Inc.,                            *
                                          *
              Defendant/Appellee.         *
           ___________

           No. 96-3711
           ___________

Joe Earl Manning, Jr.,                *
                                      *
              Plaintiff,              *
                                      *
Tomi Foust, Constance A. Pritchett,   *
                                      *
              Plaintiffs/Appellees,   *
                                      *
Gerald M. Elliott,                    *
                                      *
              Plaintiff,              *
                                      *
Cheryl V. Miller, Becky C. Smith,     *
Deborah D. Williams,                  *
                                      *
              Plaintiffs/Appellees,   *
                                      *
      v.                              *
                                      *
Metropolitan Life Insurance           *
Company, Inc.,                        *
                                      *
              Defendant/Appellant.    *

           ___________

           No. 96-3779
           ___________

Joe Earl Manning, Jr.,                *
                                      *
              Plaintiff,              *

                                      -2-
                                        *
Tomi Foust, Constance A. Pritchett,     *
                                        *
            Plaintiffs/Appellants,      *
                                        *
Gerald M. Elliott,                      *
                                        *
            Plaintiff,                  *
                                        *
Cheryl V. Miller, Becky C. Smith,       *
Deborah D. Williams,                    *
                                        *
            Plaintiffs/Appellants,      *
                                        *
      v.                                *
                                        *
Metropolitan Life Insurance             *
Company, Inc.,                          *
                                        *
            Defendant/Appellee.         *
                                   ___________

                       Submitted: September 8, 1997

                           Filed: October 10, 1997
                                ___________

Before FAGG, LAY, and WOLLMAN, Circuit Judges.
                           ___________


WOLLMAN, Circuit Judge.




                                      -3-
       Plaintiffs Joe Earl Manning, Jr. and Gerald Elliott appeal from the district court’s
grant of judgment as a matter of law (JAML) on their tort of outrage claims. Plaintiffs
Deborah Williams, Cheryl Miller, Becky Smith, and Tomi Foust appeal from the




                                           -4-
district court’s grant of JAML on their claims of retaliation under Title VII. Defendant
Metropolitan Life Insurance Company (Metropolitan Life) cross-appeals from the
district court’s denial of JAML on the outrage claims of Williams, Miller, Smith, Foust,
and Constance Pritchett. Metropolitan Life also cross-appeals from the denial of JAML
on Pritchett’s retaliation claim. We affirm in part, reverse in part, and remand for a trial
on the issue of damages only on Pritchett’s outrage claim.

                                             I.

       This case has its genesis in the West Memphis, Arkansas, office of Metropolitan
Life, where the plaintiffs were employed prior to its closing in May of 1994. The West
Memphis office was not an agreeable place to work. Most of the conduct that resulted
in the plaintiffs’ allegations was connected, at some level, to an adulterous affair that
was alleged to have occurred between West Memphis branch manager Denise Mitchell
and account representative and executive trainee candidate Charles Craig.

       The sexual relationship between Mitchell and Craig pervaded the office
environment. Craig, whom Mitchell referred to as “like an assistant manager,” and who
described himself as the “dominant male” of the office, flaunted his intimate influence
with Mitchell over his fellow employees. Craig boasted openly and explicitly of sexual
acts with Mitchell and of the preferential treatment that his relationship with Mitchell
afforded him. Craig described his own sexual prowess in graphic terms, detailing his
performance of oral sex upon Mitchell, and describing and fondling his genitals in front
of female employees on an almost daily basis. He would often place his crotch in front
of a seated female employee and demand that she address his penis, which he referred
to as “Harvey.” He also engaged in speculation about the sexual habits of others, such
as accusing female account representatives of sleeping with their clients in order to
secure business.




                                            -5-
       Additionally, Craig made crude, intimidating attempts to utilize his influence with
Mitchell to solicit sexual favors from account representatives, who depended on
Mitchell’s support in order to satisfy Metropolitan Life’s strict production requirements,
and from other female employees under Mitchell’s supervision. Craig made a frequent
practice of approaching Smith, for example, to inform her that he would buy her lunch
in exchange for oral sex. On one occasion, he told Pritchett, who was pregnant at the
time, that he knew that she would like him to touch her breasts. Craig also informed at
least one of the plaintiffs that if she would have sex with him he would intervene on her
behalf with Mitchell and prevent what he said was her impending termination for low
production.

      Plaintiffs’ complaints to Mitchell protesting Craig’s conduct were initially met
with indifference and eventually returned with hostility and threats of termination.
Describing himself as a former CIA mercenary and assassin, Craig seems to have taken
pleasure from his veiled suggestions that he would have Pritchett and Smith, among
others, killed for complaining about Mitchell’s and Craig’s behavior. Mitchell and
Craig openly encouraged the perception that Craig had authority over the other
employees, that his activities and behavior were not to be questioned, and that he was
being groomed for a position in management. Plaintiffs’ complaints were similarly
dismissed without investigation by other Metropolitan Life supervisory personnel,
including agency vice president Danny Gleason.

        The plaintiffs also testified to having been encouraged by their supervisors to
engage in various illegal or unethical practices, including the writing of policies in a
state for which the agent was not licensed, the forgery of policyholders’ signatures, and
the targeting of elderly policyholders to convince them to use the accrued cash value in
their existing policies with Metropolitan Life to purchase new and more substantial
policies, an illegal practice known as “churning.”




                                           -6-
       Eventually, persistent complaints by Pritchett, in particular, to the New York
headquarters of Metropolitan Life produced an investigation. As a result, Mitchell was
“repositioned,” as Gleason termed it, as an account representative in the Jonesboro
office of Metropolitan Life. Rather than being terminated, Craig was transferred to a
similar office in Olive Branch, Mississippi (for whatever reason, Craig did not report
for work at this new location, although it appears to be only some twenty-five to thirty
miles distant from West Memphis).

        The plaintiffs ultimately brought suit, alleging that Metropolitan Life’s response
to their complaints constituted retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-3(a). The plaintiffs further alleged that by tolerating
various forms of sexual harassment and other clearly inappropriate behavior by its
supervisors and employees, Metropolitan Life was guilty of the tort of outrage under
Arkansas law.1

       At the close of the plaintiffs’ case, Metropolitan Life moved for JAML on all
claims of retaliation. The district court granted JAML on all but one of the retaliation
claims, holding that the requisite adverse employment action had not been shown.
Pritchett’s retaliation claim was allowed to proceed. Metropolitan Life then moved for
JAML on all claims of outrage. The district court denied the motion on the outrage
claims of Pritchett, Williams, Miller, Smith, and Foust, and reserved a ruling on the
claims of Manning and Elliott.



       1
        The district court held that the plaintiffs’ Title VII sexual harassment claims
were barred by the applicable statute of limitations, a ruling that plaintiffs do not
challenge on appeal. The plaintiffs also appear to have alleged retaliation in violation
of Title VII, 42 U.S.C. § 1981(a). Although Section 1981 has been held to encompass
allegations of retaliatory conduct in a racial discrimination context, claims of gender or
sex discrimination are not cognizable. See DeGraffenreid v. General Motors Assembly
Div., St. Louis, 558 F.2d 480, 486 n.2 (8th Cir. 1977).

                                            -7-
       After the conclusion of all evidence, Metropolitan renewed its motions for JAML
on the plaintiffs’ outrage claims and on Pritchett’s retaliation claim. The district court
again took under advisement the motion for JAML on the outrage claims of Manning
and Elliott, and denied the other motions. After the jury returned a verdict for each
plaintiff on the claims of outrage and for Pritchett on her retaliation claim, the district
court granted JAML on the outrage claims of Manning and Elliott, and entered judgment
on the remaining claims.

                                            II.

        We conduct a de novo review of a district court’s rulings on motions for JAML,
applying the same standard employed by the district court. See Feltmann v. Sieben, 108
F.3d 970, 974 (8th Cir. 1997). We resolve all factual conflicts in favor of the
nonmoving party, giving that party the benefit of all reasonable inferences and assuming
as true all facts favoring that party which the evidence tended to prove. See Gathright
v. St. Louis Teacher’s Credit Union, 97 F.3d 266, 267 (8th Cir. 1996). We will affirm
a grant of JAML where the nonmoving party has presented insufficient evidence to
support a jury verdict in his favor. See Harvey v. Wal-Mart Stores, Inc., 33 F.3d 969,
970 (8th Cir. 1994). Similarly, we will affirm the denial of a motion for JAML if a
reasonable jury could differ as to the conclusions that could be drawn. See Gathright,
97 F.3d at 268.

        The tort of outrage under Arkansas law is essentially that of intentional infliction
of emotional distress. See Hamaker v. Ivy, 51 F.3d 108, 110 n.2 (8th Cir. 1995). Four
elements must be proved to establish such a claim: (1) the actor intended to inflict
emotional distress or knew or should have known that emotional distress was the likely
result of his conduct; (2) the conduct was extreme and outrageous, beyond all possible
bounds of decency, and utterly intolerable in a civilized community; (3) the actions of
the defendant were the cause of the plaintiff’s distress; and (4) the emotional distress
sustained by the plaintiff was so severe that no reasonable person could be expected

                                            -8-
to endure it. See Doe v. Wright, 82 F.3d 265, 269 (8th Cir. 1996) (citing Deitsch v.
Tillery, 833 S.W.2d 760, 762 (Ark. 1992)).

       We have recognized that the Arkansas courts take a very narrow view of claims
of outrage. See Freeman v. Bechtel Const. Co., 87 F.3d 1029, 1031 (8th Cir. 1996).
The tort is clearly not intended to provide legal redress for every slight insult or
indignity that one must endure. See Hamaker, 51 F.3d at 110. Review of outrage
claims in employment situations has been particularly strict, as “an employer must be
given a certain amount of latitude in dealing with employees.” Freeman, 87 F.3d at
1031 (quoting Sterling v. Upjohn Healthcare Servs., Inc., 772 S.W.2d 329, 330 (Ark.
1989)).

       The Supreme Court of Arkansas has consistently held the plaintiff to a high
burden of proof in a tort of outrage claim in an employment situation. In Hollomon v.
Keadle, the court seemed to raise the threshold of proof even higher, however, by
holding that an employee who did not demonstrate that her employer was made aware
that she was not a person of ordinary temperament or that she was peculiarly
susceptible to emotional distress by reason of some physical or mental condition did
not establish a claim of outrage. 931 S.W.2d 413, 415 (Ark. 1996). In so doing, the
court explicitly relied on its statement in Tandy Corp. v. Bone, 678 S.W.2d 312 (Ark.
1984), that “[w]e emphasize that the notice to the employer of Bone’s condition is the
only basis for a jury question of extreme outrage.” Hollomon, 931 S.W.2d at 415
(quoting Tandy, 678 S.W.2d at 317).2



      2
        Removed from its context in Tandy, this statement might be misconstrued. The
Tandy court proceeded to hold: “Whether Bone’s testimony was credible, whether he
had intentionally lied to his employer, whether his employer was reasonable in denying
him his medication, and whether, considering all the circumstances, the employer was
guilty of outrageous conduct that proximately caused emotional distress to Bone were
all questions for the jury.” Tandy, 678 S.W.2d at 317 (emphasis added).

                                         -9-
       Metropolitan Life argues that Hollomon stands for the proposition that an
employee in Arkansas can never state a claim of outrage against her employer unless
she has first established that the employer was placed on notice that the employee was
not a person of ordinary temperament or was peculiarly susceptible to emotional
distress. Such a holding, however, would not be in accord with the Restatement
(Second) of Torts § 46 (1965), upon which the Hollomon court relied, which regards
such a showing as merely one factor that might be considered in an examination of
whether alleged conduct is of a sufficiently extreme and outrageous character to
support liability:

      The extreme and outrageous character of the conduct may arise from the
      actor’s knowledge that the other is peculiarly susceptible to emotional
      distress, by reason of some physical or mental condition or peculiarity.
      The conduct may become heartless, flagrant, and outrageous when the
      actor proceeds in the face of such knowledge, where it would not be so
      if he did not know. It must be emphasized again, however, that major
      outrage is essential to the tort; and the mere fact that the actor knows that
      the other will regard the conduct as insulting, or will have his feelings
      hurt, is not enough.

Id. at cmt. f (emphasis added); see also Ingram v. Pirelli Cable Corp., 747 S.W.2d 103,
106 (Ark. 1988).

        We have found no other Arkansas case, in the employment context or otherwise,
which suggests that a failure to demonstrate an alleged tortfeasor’s knowledge of a
victim’s fragile temperament or peculiar susceptibility to emotional distress will, by
itself, defeat an outrage claim as a matter of law. To the contrary, in the Arkansas
Supreme Court’s most recent pronouncement on outrage, only the traditional elements
of the tort are set forth, and no reference is made to the purported requirement of
employer notice of peculiar susceptibility. See Angle v. Alexander, 945 S.W.2d 933,
936-37 (Ark. 1997).


                                          -10-
-11-
       We believe that the Arkansas courts will continue to adhere to the traditional
elements of outrage and that notice of peculiar susceptibility to emotional distress will
merely be one factor given special emphasis when an aggrieved employee asserts an
outrage claim, as the Restatement of Torts and a reading of Arkansas case law prior to
Hollomon suggest. See Wright, 82 F.3d at 269; Hamaker, 51 F.3d at 111; Crenshaw
v. Georgia-Pacific Corp., 915 F. Supp. 93, 98 (W.D. Ark. 1995); Smith v. American
Greetings Corp., 804 S.W.2d 683, 686 (Ark. 1991). We do not believe, for example,
that the Supreme Court of Arkansas would set aside a tort of outrage verdict in favor
of an employee whose employer repeatedly fondled her and made intimidating demands
for sex, merely because there was no showing that the employer was made aware that
the employee was peculiarly susceptible to the severe emotional distress that such
outrageous conduct is substantially certain to cause. See Hale v. Ladd, 826 S.W.2d
244 (Ark. 1992). Rather, we are confident that the court would hold that the right to
be free from conduct of this sort extends to every person and not just to those known
to possess temperaments that are peculiarly fragile.

        We turn, then, to the substance of these appeals. We are in agreement with the
district court that JAML was not appropriate on the outrage claims of Williams, Miller,
Smith, Foust, and Pritchett.3 Each of these women was targeted by Craig and subjected
to daily descriptions of his body parts, explicit updates on his sexual activity, and crude
propositions made under the threat of adverse consequences or the promise of special
favors. Each also testified that Craig’s ongoing public affair with Mitchell rendered
their protests fruitless. Complaints by the plaintiffs to their regional supervisors
produced responses ranging from passivity to subtle hostility. All of these plaintiffs,


      3
        The jury made the following damage awards on these plaintiffs’ outrage claims:
Williams ($1,500 compensatory/2,000 punitive); Miller ($10,500/19,500); Smith
($2,500/4,500); and Foust ($5,000/8,500). Pritchett was awarded $50,000 in
compensatory and $225,000 in punitive damages as compensation for her outrage and
retaliation claims.

                                          -12-
moreover, described the extreme distress and accompanying symptoms that resulted
from the actions of Craig and Mitchell and the indifference of Metropolitan Life. See
Angle, 945 S.W.2d at 937 (citing Prosser and Keeton on Torts, § 12 (5th ed. 1984)) (if
enormity of offending conduct itself carries conviction there has been severe mental
distress, physical harm not required to be shown). We believe that a reasonable jury
could find this conduct to have constituted the tort of outrage under Arkansas law.4 We
therefore affirm the district court’s denial of JAML on the outrage claims of Williams,
Miller, Smith, Foust, and Pritchett.

        We also agree with the district court that Manning and Elliott presented
insufficient evidence to support the jury verdicts in their favor on their outrage claims.5
Manning and Elliott were no more than occasional spectators to the sort of abuse by
Craig that the other plaintiffs were forced to endure. Manning’s chief complaint was
that he felt pressured to permit Mitchell and Craig access to his house to conduct their
adulterous affair, although he apparently never expressed to them his discomfort with
this situation until he eventually and indirectly did so by turning down the furnace.
Elliott claims that a psychiatric vulnerability made his overhearing of sexual comments
by Craig unbearable, although Craig apparently honored Elliott’s request to stop making
such comments in Elliott’s presence. Exposure to abrasive profanity alone is not
sufficient to state an outrage cause of action. See Tandy, 678 S.W.2d at 315.



      4
        Regarding plaintiffs’ allegations that they were encouraged by their superiors
to participate in illegal and unethical business practices such as forgery and churning,
we note that such allegations alone are not sufficient to state a claim of outrage under
Arkansas law. See Puckett v. Cook, 864 F.2d 619, 622 (8th Cir. 1989); Sterling Drug,
Inc. v. Oxford, 743 S.W.2d 380, 382-83 (Ark. 1988). Such practices, however, could
very well have contributed to the plaintiffs’ emotional distress.
      5
      The jury awarded Manning $5,000 in compensatory and $25,000 in punitive
damages. Elliott was awarded $13,000 in compensatory and $25,000 in punitive
damages.

                                          -13-
Accordingly, we affirm the district court’s grant of JAML on Manning’s and Elliott’s
outrage claims.

                                          III.

       As indicated above, the district court granted judgment as a matter of law on all
but Pritchett’s retaliation claim, holding that a subsequent adverse employment action
had not been demonstrated by Williams, Miller, Smith, and Foust.

      To prevail on a retaliation claim brought under Title VII, 42 U.S.C. § 2000e-3(a),
an employee must show that (1) she filed a charge of discrimination; (2) the employer
subsequently took adverse employment action against her; and (3) the adverse action
was causally linked to the filing of the charge of discrimination. See Cram v. Lamson
& Sessions, Co., 49 F.3d 466, 474 (8th Cir. 1995). Once this prima facie showing is
made, the burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its actions. See Jackson v. Delta Special Sch. Dist. No. 2, 86 F.3d 1489,
1494 (8th Cir. 1996). If the employer meets that burden, the presumption of retaliation
disappears. See id.

      The retaliation provision of 42 U.S.C. § 2000e-3(a) does not itself contain
language requiring a materially adverse employment action in order to state a claim.
This requirement is inferred from the basic prohibition of employment discrimination
set forth in 42 U.S.C. § 2000e-2(a)(1)-(2). See McDonnell v. Cisneros, 84 F.3d 256,
258-59 (7th Cir. 1996).

       Although actions short of termination may constitute an adverse employment
action within the meaning of the statute, “not everything that makes an employee
unhappy is an actionable adverse action.” Montandon v. Farmland Indus., Inc., 116
F.3d 355, 359 (8th Cir. 1997). We have held that a reasonable jury could conclude that
negative references to potential employers constituted sufficient adverse action to state

                                         -14-
a retaliation claim. Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997). We
have also recently held that the loss of status and prestige that accompanied replacement
of an income maintenance supervisor’s staff, when her salary and position remained the
same, did not constitute a sufficient adverse employment action. Ledergerber v.
Stangler, No. 96-2395, 1997 WL545970 (8th Cir. Sept. 8, 1997); see also Harlston v.
McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (changes in duties or
working conditions that cause no materially significant disadvantage insufficient to
establish adverse employment action).

       Although the West Memphis office eventually closed as part of a larger
downsizing at Metropolitan Life, Williams, Miller, Smith, and Foust do not allege the
loss of their employment to have constituted retaliation for their complaints. Instead,
these plaintiffs generally contend that the hostility and personal animus directed toward
them by Metropolitan Life supervisors collectively constituted an adverse employment
action. Williams, additionally, made vague allegations that her disability benefits were
improperly handled as punishment for speaking out.

       Absent evidence of some more tangible change in duties or working conditions
that constituted a material employment disadvantage, we must agree with the district
court that Williams, Miller, Smith, and Foust did not present evidence sufficient to
demonstrate any adverse employment action that constitutes the sort of ultimate
employment decision intended to be actionable under Title VII. See Ledergerber, 1997
WL545970 at *2; Montandon, 116 F.3d at 359. We therefore affirm the grant of JAML
on their retaliation claims.

       The district court denied a motion for JAML on Pritchett’s retaliation claim.
Pritchett contended that she was retaliated against for her complaints in the form of
disrespect and ostracization by her supervisors and as a result of the untimeliness and
the manner in which the West Memphis office was closed. Although the hostility
directed toward Pritchett was of greater intensity than that directed toward the other

                                         -15-
plaintiffs, we conclude that it did not rise to the level of an adverse employment action.
See id.; Ledergerber, 1997 WL545970 at *2. Regarding the manner in which the West
Memphis office was closed, Pritchett cannot establish that she was treated any
differently from any other Metropolitan employee who was affected. Pritchett was
transferred to Jonesboro, the Metropolitan Life office closest in proximity to West
Memphis, and was eventually terminated for lack of production. Significantly, she does
not allege that she was discharged in retaliation for her complaint. Accordingly, the
district court should have granted Metropolitan Life’s motion for JAML on Pritchett’s
retaliation claim.

                                           IV.

       Although the jury was instructed to make separate findings of liability on
Pritchett’s claims of outrage and retaliation, the verdict form was not structured to allow
for a separate award on each of these counts. As a result, the jury awarded a lump sum
of $50,000 in compensatory and $225,000 in punitive damages. Because we are unable
to determine how the jury intended to apportion the damages between the two claims,
we must remand Pritchett’s outrage claim for determination of an appropriate damage
award.

       The judgment is affirmed in part and reversed in part, and the case is remanded
to the district court for trial on the issue of damages only on Pritchett’s outrage claim.

      A true copy.

             Attest:

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




                                          -16-
