                         United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT
                                     ___________

                              Nos.    96-4115/97-1120
                                     ___________
Carolyn A. Coffman,                       *
                                          *
          Cross-                          *   Appeals from the United States
Appellant/Appellee,                       *   District Court for the
                                          *   Western District of Missouri.
      v.                                  *
                                          *
Tracker Marine, L.P.,                     *
                                          *
            Appellant/Cross-              *
Appellee.
                                     ___________

                          Submitted: November 21, 1997
                                        Filed: April 13, 1998
                                   ___________

Before FAGG and HANSEN, Circuit Judges, and PIERSOL,1 District Judge.
                               ___________

HANSEN, Circuit Judge.

      Tracker Marine, L.P., (Tracker Marine) appeals following a jury
verdict in favor of Carolyn A. Coffman on her retaliatory constructive
discharge claim under Title VII of the Civil Rights Act of 1964, arguing
that the district court erred in denying its motion for judgment as a
matter of law. Coffman cross-appeals, claiming the district




      1
       The Honorable Lawrence L. Piersol, United States District Judge for the District
of South Dakota, sitting by designation.
court erred in failing to submit her claim for punitive damages to the
jury. We affirm in part, reverse in part, and remand.

                   I.   Factual and Procedural Background

      In 1986, Coffman began working for Tracker Marine, a boat
manufacturer, as an accounts payable clerk. She gradually was promoted to
new positions until she became the inventory control manager at Tracker
Marine’s Bolivar, Missouri, plant in January 1991.        As part of her
negotiations with management regarding the inventory control manager
position, Coffman requested that she receive all federal holidays off with
pay.2   The exact nature of the agreement regarding these holidays is
unclear, but it appears that, at the very least, the parties reached an
informal understanding that Coffman would receive all federal holidays off
with pay, and she in fact took all of these holidays off with pay until
shortly before she resigned. As inventory control manager, Coffman was
responsible for controlling the level and flow of inventory, both raw
materials and finished goods, as it moved through the plant. She was also
responsible for supervising twenty-five employees.

      In May 1992, Coffman made a complaint of sexual harassment to Ann
McNew, the personnel representative at the Bolivar plant, against Kenneth
Beckler, Coffman’s supervisor and the Bolivar plant manager. When Beckler
learned of the complaint, he self-reported the harassment claim to Michael
Rowland, a vice-president of human resources.        Rowland conducted an
investigation and reviewed the results with Coffman.        Rowland warned
Beckler that he was receiving a “final warning” and that termination would
result from: (1) another complaint of sexual harassment; (2) any
retaliation against Coffman; or (3) any physical contact between Beckler
and any employee.




      2
       Other employees received some federal holidays off, but not Columbus Day,
Veterans’ Day, Martin Luther King, Jr.’s Birthday, and Presidents’ Day.

                                      -2-
      Following the harassment complaint, according to Coffman, Beckler
retaliated against her in various ways. Beckler removed significant job
responsibilities and functions from Coffman’s position as inventory control
manager, including the ordering of important raw materials, supervisory
responsibilities in the shipping department, and responsibility for
building materials. Coffman claimed that Beckler repeatedly placed his
hands into the air and backed away in an exaggerated manner in response to
Coffman’s presence in the hallway of the plant. Further, Beckler no longer
allowed Coffman to take all federal holidays off with pay. Beckler also
avoided verbal communication with Coffman and instead used electronic mail.
Finally, Beckler excluded Coffman from attendance at management meetings.


      Coffman complained to McNew about some of Beckler’s behavior that
Coffman believed to be retaliatory, and McNew reported these complaints to
Rowland. Coffman also told Bill Gilkerson, the maintenance manager, that
Beckler was treating her differently after having filed her sexual
harassment complaint, and that Beckler was not allowing her to do her job.
It is unclear from the record precisely when these conversations took
place, although they were before Coffman resigned and after she brought the
sexual harassment complaint against Beckler.

      On January 19, 1993, Coffman met with Beckler and McNew regarding
Coffman’s failure to receive paid time off for all federal holidays.
Beckler told Coffman she had misunderstood their original agreement and
that he did not have authority to allow her to take off all federal
holidays.   Beckler then told Coffman she could no longer take off all
federal holidays. Following this meeting, Coffman met with Rowland and
submitted a letter of resignation, setting      forth a list of alleged
retaliatory actions taken by Beckler. Rowland asked Coffman not to resign
and to allow him to investigate the matter and then get back to her.

      Following his investigation, Rowland called Coffman and told her that
he did not think there had been any retaliation, but that there was a
communication problem




                                    -3-
between Beckler and Coffman. Rowland informed Coffman that he thought the
problem could be resolved through the use of a facilitator. Coffman did
not want to use either of the two facilitators that Rowland recommended.
Instead, Coffman wanted to use an independent facilitator from outside the
company that she would not know. Rowland would not agree to bring in an
outside facilitator. Soon thereafter, Beckler gave Coffman a favorable
evaluation on a performance review. Shortly after this review, Coffman
resigned.

      On November 8, 1994, Coffman brought the present action against
Tracker Marine, alleging sexual harassment, retaliation for lodging a
sexual harassment complaint, and constructive discharge, all in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a),
2000e-3(a) (1994). Coffman also alleged a violation of the Equal Pay Act,
29 U.S.C. § 206(d). On September 23, 1996, the district court granted
summary judgment in favor of Tracker Marine on Coffman’s sexual harassment
claim, ruling that the conduct complained of was not so “severe and
pervasive as to create an objectively hostile work environment,” and that
Tracker Marine had taken prompt and remedial action reasonably likely to
stop the harassment. (Appellant’s Supp. App. at 8, 11.) Coffman does not
appeal that ruling. The court denied Tracker Marine’s summary judgment
motion on the retaliation claim, finding Coffman had made out a prima facie
case and that there was a jury issue on whether Tracker Marine’s proffered
legitimate reasons were pretextual. The court also denied Tracker Marine’s
motion for summary judgment on the constructive discharge claim, ruling
“the crux of the constructive discharge claim depends on [the] same factual
issues” as the retaliation claim. (Appellant’s Supp. App. at 13.) The
court further denied summary judgment on the Equal Pay Act claim.

      The case proceeded to trial on October 7, 1996. On October 11, 1996,
the jury returned a verdict for Tracker Marine on the Equal Pay Act claim
and for Coffman on the retaliatory constructive discharge claim. The jury
awarded Coffman $15,000 for back pay, $5,000 for emotional distress, and
$5,000 for medical expenses. No punitive




                                    -4-
damages were awarded because the court had previously denied Coffman’s
request to instruct the jury on such damages.     Following the verdict,
Tracker Marine filed a motion for judgment as a matter of law or,
alternatively, for a new trial. The district court denied the motion.
Tracker Marine appeals this ruling, and Coffman cross-appeals the failure
to instruct the jury on punitive damages.

                              II.   Analysis

                        A. Tracker Marine’s Appeal

    1. Adverse Employment Action as a Result of the Sexual Harassment
                                Complaint

      Tracker Marine argues that the district court erred in denying its
motion for a judgment as a matter of law on Coffman’s retaliation claim
because Coffman presented insufficient evidence that she suffered an
adverse employment action as a result of her sexual harassment complaint.
We review de novo the district court’s denial of Tracker Marine’s motion
for judgment as a matter of law. Gartman v. Gencorp, Inc., 120 F.3d 127,
129 (8th Cir. 1997). “We view the evidence in the light most favorable to
the verdict and will not reverse a jury's verdict for insufficient evidence
unless we conclude that no reasonable juror could have returned a verdict”
for Coffman on this claim. Deneen v. Northwest Airlines, Inc., 132 F.3d
431, 438 (8th Cir. 1998) (internal quotations omitted).

      There are three elements of a prima facie case in a Title VII
retaliation claim: (1) the plaintiff engaged in statutorily protected
activity; (2) the plaintiff suffered an adverse employment action; and (3)
this adverse employment action occurred because the plaintiff engaged in
statutorily protected activity. See Evans v. Kansas City, Mo. Sch. Dist.,
65 F.3d 98, 100 (8th Cir.1995), cert. denied, 116 S. Ct. 1319 (1996). The
defendant may then rebut the plaintiff's prima facie case by advancing a
legitimate, nonretaliatory reason for the adverse employment action. See
Ruby v. Springfield R-12




                                    -5-
Pub. Sch. Dist., 76 F.3d 909, 911 (8th Cir.1996). If the defendant makes
this showing, the plaintiff must show that the defendant's proffered reason
was a pretext for illegal retaliation. Id. Coffman has clearly met the
first element—she engaged in statutorily protected activity by making a
sexual harassment complaint against Beckler. Tracker Marine contends that
there is insufficient evidence to meet the second and third elements.

      We first determine whether Coffman suffered an adverse employment
action after her harassment complaint. Although “actions short of
termination may constitute adverse actions within the meaning of the
statute,” not everything that makes an employee unhappy is an actionable
adverse employment action. Smith v. St. Louis Univ., 109 F.3d 1261, 1266
(8th Cir. 1997). Instead, the action must have had some materially adverse
impact on Coffman’s employment terms or conditions to constitute an adverse
employment action. See Ledergerber v. Strangler, 122 F.3d 1142, 1144 (8th
Cir. 1997).

      Our review of the record leads us to conclude that the jury was
presented with ample evidence upon which it could find Coffman suffered an
adverse employment action. Coffman’s claim that she was not permitted to
take all the federal holidays off work after she made her harassment
complaint is supported by her own testimony and that of a coworker. The
denial of these vacation days easily qualifies as an adverse employment
action because it was a material change in one of Coffman’s existing
employment benefits. See id. Based on this action alone, the jury had
sufficient evidence to find Coffman suffered an adverse employment action.

      There was also evidence to support Coffman’s claim that Beckler would
back away from her in the hallway in an exaggerated manner, causing
embarrassment to Coffman. Both Coffman and others testified about this
behavior. Coffman also had her duties at work changed, including the loss
of her responsibility for ordering coil and extrusion, important raw
materials in the manufacturing of boats at the Bolivar plant.




                                   -6-
These ordering duties represented a substantial part of Coffman’s job as
inventory control manager. When Tracker Marine stripped Coffman of her
duties as supervisor of the shipping department, the number of employees
she supervised was reduced from twenty-five to eight. Coffman testified
that Beckler began to communicate with her more by electronic mail and
worked with her less on a one-to-one basis. While Beckler may have done
so out of a sense of self-preservation and to provide documentation for his
contacts with someone who had charged him with sexual harassment, according
to Coffman, these changes in Beckler’s communications with her hampered her
ability to do her job.      There was also evidence that Tracker Marine
excluded Coffman from some management meetings that, as inventory control
manager, she would have been expected to attend. Taken together, these
actions, as well as the denial of vacation time previously discussed, show
Coffman’s employment was adversely affected in a material way. See Burns
v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992) (court
looks at combined effect of the employer’s actions to determine if there
was discrimination).

      We next review the record to see if there is sufficient evidence to
support the jury’s finding that the adverse employment action was the
result of Coffman’s sexual harassment complaint, again viewing the evidence
in the light most favorable to the verdict. Deneen, 132 F.3d at 438. We
conclude that there is.       The person making the adverse employment
decisions, Beckler, was the same person whose behavior had been the subject
of Coffman’s harassment complaint.      There was evidence that Beckler’s
demeanor and his relationship with Coffman changed after the complaint.
His exaggerated reactions to Coffman in the hallway support an inference
of hostility towards Coffman in response to her complaint. This evidence
could well have been used by the jury to draw an inference that Beckler’s
actions in changing Coffman’s duties and denying her vacation time had been
taken in response to the complaint. The timing of Beckler’s actions in
relation to the harassment complaint, when considered along with the other
evidence of retaliatory motive, also supports a reasonable inference that
his actions were motivated by the complaint. See O’Bryan v. KTIV




                                   -7-
Television, 64 F.3d 1188, 1194-95 (8th Cir. 1995).      Finally, the jury
easily could    have disbelieved Tracker Marine’s proffered legitimate
reasons for the actions and found they were pretextual.

          2. Prompt and Appropriate Remedial Action by Tracker Marine

      Tracker Marine next claims that there was insufficient evidence to
support the jury’s finding that it did not take prompt and remedial action
to end the retaliation against Coffman. For purposes of this appeal, we
assume without deciding that prompt and appropriate remedial action
prevents employer liability for a Title VII retaliation claim.3

      Our review of the record in the light most favorable to the verdict,
see Deneen, 132 F.3d at 438, leads us to conclude that there is sufficient
evidence to support the jury’s finding that Tracker Marine did not take
prompt and appropriate remedial action designed to resolve Coffman’s
retaliation complaint. We first note that this issue involves a fact-based
inquiry into whether Tracker Marine’s response to Coffman’s retaliation
complaints was prompt and appropriate, an issue that often must be decided
by the jury. See Smith, 109 F.3d at 1265 (noting that the promptness and
appropriateness of an employer’s response to a Title VII complaint was
subject to a factual dispute that should be resolved by the jury). Coffman
talked with McNew about the problems she was having with Beckler and told
her she thought they were the result of retaliation for the prior
harassment complaint.     Coffman testified that she cried during these
meetings with McNew. Although Coffman did not tell McNew about all of the
retaliatory actions, McNew testified that she informed Rowland of the
problems




      3
        Although the parties dispute whether such action prevents employer liability for
a retaliation claim, we find it unnecessary to resolve this issue because the jury’s
finding that Tracker Marine did not take prompt and appropriate remedial action on her
retaliation claim is supported by substantial evidence.

                                          -8-
Coffman did report. Rowland claimed no knowledge of these complaints and
took no action to correct the situation. In deciding which witness to
credit, the jury could reasonably conclude that Rowland had been informed
of the complaints and that he ignored them and did not take appropriate
action to resolve them. When Rowland was later confronted with Coffman’s
letter of resignation, he did take some action.        He investigated the
problem, but he concluded the acts were not retaliatory and suggested using
a facilitator to solve what he viewed as a communication problem between
Coffman and Beckler.      The jury did not have to accept this as an
appropriate response, especially since the jury found there had been
retaliation rather than merely a communication problem.

                        3. Constructive Discharge

      Tracker Marine next argues that the evidence is insufficient to
support the jury’s finding that Coffman had been constructively discharged.
A plaintiff must show more than just a Title VII violation by her employer
in order to prove that she has been constructively discharged. See Tidwell
v. Meyer’s Bakeries, Inc., 93 F.3d 490, 495 (8th Cir. 1996) (holding that
although there was evidence of discrimination by the employer based on
race, there was insufficient evidence to support a finding that the
employer had constructively discharged the plaintiff). Thus, even though
there is sufficient evidence to support the jury’s findings of retaliatory
adverse employment action, we must independently examine the evidence to
see if it is sufficient to support the jury’s finding of constructive
discharge. In so doing, we once again view the record in the light most
favorable to the verdict. Deneen, 132 F.3d at 438.

      To establish a claim for constructive discharge, the plaintiff must
show that the employer “deliberately create[d] intolerable working
conditions with the intention of forcing the [plaintiff] to quit.”
Tidwell, 93 F.3d at 494 (citing Johnson v. Bunny Bread Co., 646 F.2d 1250,
1256 (8th Cir. 1981)). “The plaintiff can satisfy the intent requirement
by demonstrating that [she] quit as a reasonably foreseeable consequence




                                   -9-
of the employer's discriminatory actions.”       Id. (citing Hukkanen v.
International Union of Operating Eng'rs, 3 F.3d 281, 285 (8th Cir.1993)).
The plaintiff must establish that “a reasonable person in her situation
would find the working conditions intolerable. ” Gartman, 120 F.3d at 130.
Thus, the “intolerability of working conditions is judged by an objective
standard, not the employee’s subjective feelings.”          Id. (internal
quotations and alterations omitted).

        We have articulated further principles for use in resolving
constructive discharge claims that are relevant to this case.
“Dissatisfaction with a work assignment is, as a matter of law, normally
not so intolerable as to be a basis for constructive discharge.” Tidwell,
93 F.3d at 496 (citing Carter v. Ball, 33 F.3d 450, 459 (4th Cir.1994)
(“Dissatisfaction with work assignments, a feeling of being unfairly
criticized, or difficult or unpleasant working conditions are not so
intolerable as to compel a reasonable person to resign.”)). Also, we have
stressed that “[t]o act reasonably, an employee has an obligation not to
assume the worst and not to jump to conclusions too quickly.” Id. at 494
(citing West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir.1995)).
If an employee quits without giving her employer a reasonable chance to
work out a problem, then she has not been constructively discharged. Id.
The rationale underlying these rules is that “‘society and the policies
underlying Title VII will be best served if, wherever possible, unlawful
discrimination is attacked within the context of existing employment
relationships.’” West, 54 F.3d at 498 (quoting Bourque v. Powell Elec.
Mfg. Co., 617 F.2d 61, 66 (5th Cir. 1980)); see also Perry v. Harris
Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997) (“unless conditions are
beyond ‘ordinary’ discrimination, a complaining employee is expected to
remain on the job while seeking redress.”).

      Our review of the evidence convinces us that Coffman failed to present
sufficient evidence for a jury to find that a reasonable person in
Coffman’s position would have found that the conditions of her employment
were intolerable. Coffman was not an employee who felt she had no place
to turn when faced with unlawful discrimination.




                                   -10-
She knew that she could report any allegations of retaliatory action
directly to McNew and up the chain of responsibility to Rowland. When
Coffman threatened to quit, Rowland tried to prevent her resignation and
attempted to solve the problems. Although his proposed solution may not
have been prompt and appropriate when viewed through the 20/20 lens of
hindsight, Coffman had an obligation to not jump to the conclusion that the
attempt would not work and that her only reasonable option was to quit.
See Tidwell, 93 F.3d at 494. Nor did she have the right to dictate how
Tracker Marine would try to solve the problem by insisting on an “outside”
facilitator.    This obligation is particularly appropriate here because
Rowland had taken corrective action on Coffman’s prior sexual harassment
complaint, and Coffman had little reason to believe that her retaliation
complaint would not lead to similar corrective action by Tracker Marine.
Her most recent performance review given to her by the retaliator had been
favorable.    There is also no evidence that the retaliatory acts were
intended by Tracker Marine to force Coffman to quit, or that it was
reasonably foreseeable that she would quit as a consequence of the
retaliation. See id.; Bunny Bread, 646 F.2d at 1256. The evidence here
all points the other way—when Coffman threatened to quit, Tracker Marine
tried to take action to prevent her resignation.

      “What is missing from this catalogue of evidence is any indication
that [Coffman] faced objectively intolerable working conditions. While the
conditions under which [Coffman] worked may have been unpleasant and tinged
with [retaliatory] acts, they do not create an [objectively] intolerable
atmosphere” that forced Coffman to resign. Tidwell, 93 F.3d at 497. We
hold that a jury could not reasonably conclude that Coffman was
constructively discharged.     The district court erred in not granting
Tracker Marine’s judgment as a matter of law on the constructive discharge
component of Coffman’s retaliation claim.

      Because there is sufficient evidence for the jury’s finding that
Tracker Marine violated Title VII by taking adverse employment actions
against Coffman as a result of her prior harassment complaint and
insufficient evidence for Coffman’s constructive




                                   -11-
discharge claim, we must determine whether this affects the damages awarded
to Coffman. Pursuant to the instructions and verdict director, the jury,
after finding Coffman had been constructively discharged, awarded damages
to Coffman by attributing specific amounts to the categories of back pay,
emotional distress, and medical treatment.4      The jury awarded Coffman
$15,000 in back pay, $5,000 for emotional distress, and $5,000 for medical
treatment. Alternatively, the instructions and verdict director provided
that if the jury found that Tracker Marine retaliated against Coffman but
had not constructively discharged her, then the jury should only award
damages for emotional distress and medical treatment.

      Under these circumstances, we can uphold a part of the jury’s damage
award and avoid the necessity of a new trial. We have concluded that the
evidence supports the jury finding that Coffman was retaliated against but
does not support a finding that she was constructively discharged. Under
this scenario, the jury instructions expressly required the jury to award
damages to Coffman for the categories of emotional distress and medical
treatment. We know the amount of damages the jury attributed to these two
categories, and we affirm those determinations. Thus, we remand to the
district court for the entry of an order reflecting that judgment is
entered in favor of Coffman on the retaliation claim only and reducing the
damage award by $15,000, the amount attributed by the jury to back pay.
In all other respects, we affirm the judgment of the district court on
Tracker Marine’s appeal.

                           B. Coffman’s Cross-appeal

      Coffman argues on cross-appeal that the district court erred in not
submitting her claim for punitive damages to the jury. We reject this
argument.




     4
      Neither party challenges these instructions or the verdict director.

                                        -12-
      Under Title VII, punitive damages may be awarded if an employer is
found to have engaged in unlawful employment discrimination “with malice
or with reckless indifference to the federally protected rights” of the
plaintiff. 42 U.S.C. § 1981a(b)(1). The evidence here does not support a
finding that Tracker Marine acted with reckless indifference to the
federally protected rights of Coffman. Although the jury found Tracker
Marine did not respond promptly and appropriately to Coffman’s retaliatory
complaints, Tracker Marine did respond later and attempted to solve what
it perceived as the problem.      This is not a case where an employer
repeatedly ignored complaints about unlawful discrimination. Cf. Kimzey
v. Wal-Mart Stores, Inc., 107 F.3d 568, 576 (8th Cir. 1997). There is
simply an inadequate showing of malice or reckless indifference by Tracker
Marine toward Coffman’s Title VII rights to have required the submission
of a punitive damages instruction to the jury.

                             III.   Conclusion

      Accordingly, we reverse and remand this case to the district court for
the entry of an order reflecting that judgment is entered in favor of
Coffman on the retaliation claim and reducing the damage award by $15,000.
In all other respects, we affirm the judgment of the district court.

     A true copy.

           Attest:

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




                                    -13-
