IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT




                            No. 91-4485



BARBARA LANDGRAF,
                                          Plaintiff-Appellant,

                                versus

USI FILM PRODUCTS,
BONAR PACKAGING, INC., and
QUANTUM CHEMICAL CORPORATION,
                                          Defendants-Appellees.




          Appeal from the United States District Court
                for the Eastern District of Texas


                           (July 30, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Barbara Landgraf brought suit against her employer asserting

sexual harassment and retaliation claims under Title VII.    After

a bench trial, the district court entered judgment in favor of

the defendants.   Although the district court found that sexual

harassment had occurred, it concluded that Landgraf had not been

constructively discharged and therefore was not entitled to any

relief under Title VII.   Landgraf asserts on appeal that the

district court clearly erred in finding that she was not

constructively discharged and that the district court erred in

failing to make factual findings on her retaliation claim.   She

also argues that she is entitled to nominal damages even if she
is unable to demonstrate a constructive discharge.       Finally, she

asserts that the damage and jury trial provisions of the Civil

Rights Act of 1991 should be applied retroactively to her case.

We affirm the district court's judgment in all respects and find

that the Civil Rights Act of 1991 does not apply to this case.

                                    I.

     Landgraf worked for USI Film Products in its Tyler, Texas

production plant on the 11:00 p.m. to 7:00 a.m. shift.             From

September 1984 to January 1986, she was employed as a materials

handler operating a machine which produced several thousand plastic

bags per shift.     While she worked at the plant, fellow employee

John Williams subjected her to what the district court described as

"continuous and repeated inappropriate verbal comments and physical

contact." The district court found that this sexual harassment was

severe enough to make USI a "hostile work environment" for purposes

of Title VII liability. The harassment was made more difficult for

Landgraf because Williams was a union steward and was responsible

for repairing and maintaining the machine Landgraf used in her

work.

     Landgraf told her supervisor, Bobby Martin, about Williams'

harassment on several occasions but Martin took no action to

prevent   the   harassment   from   continuing.   Only   when   Landgraf

reported the harassment to USI's personnel manager, Sam Forsgard,

was Williams' behavior investigated.        By interviewing the other

female employees at the plant, the investigation found that four




                                     2
women corroborated Landgraf's reports of Williams engaging in

inappropriate touching and three women reported verbal harassment.

       Williams denied the charges, contending that "they are all

lying."    Williams was given a written reprimand for his behavior,

but was not suspended, although the written policies of USI list

sexual harassment as an action "requiring suspension or dismissal."

He was technically transferred to another department, however, USI

officials conceded that he would still be in Landgraf's work area

on a regular basis.    This transfer was not a form of discipline

against Williams; as soon as Landgraf resigned he was transferred

back to the original department.

       The investigation dealt not only with Williams' behavior but

also involved questioning employees about their relationship with

Landgraf.    On January 13, 1986, Forsgard, Wilson, and Martin met

with Landgraf. According to Wilson's notes describing the meeting,

Forsgard first told Landgraf that her claim had been investigated

and that USI had taken the action it deemed appropriate.       The

meeting then turned to focus on Landgraf's problems in getting

along with her co-workers.       She was told that she was very

unpopular and was "among [her] own worst enemies."   When Landgraf

asked whether anything was going to happen to Williams she was told

that USI had taken what it considered appropriate action and to

notify them if Williams attempted to take revenge.

       After working just two more shifts, Landgraf left her job at

USI.    She left a letter addressed to her colleagues stating that

"the stress that each one of you help [sic] to put on me, caused me


                                   3
to   leave   my    job."        The   letter    did    not     refer   to    the   sexual

harassment or to Williams by name.               Approximately two days later,

Landgraf spoke to her supervisor about her decision to resign and

specifically attributed it to the harassment by Williams.

                                          II.

      It is uncontested that Barbara Landgraf suffered significant

sexual   harassment        at   the    hands    of     John    Williams      during   her

employment with USI.            This harassment was sufficiently severe to

support a hostile work environment claim under Title VII.                          Meritor

Savings Bank, FSB v. Vinson, 

(1986).                         She reported

this harassment to her employer through supervisor Bobby Martin on

several occasions and no corrective action was timely taken.

      Because Landgraf voluntarily left her employment at USI,

however,     she    must    demonstrate         that     she    was    constructively

discharged in order to recover back pay as damages.                         In order to

demonstrate constructive discharge, she must prove that "working

conditions would have been so difficult or unpleasant that a

reasonable person in the employee's shoes would have felt compelled

to resign."       Bourque v. Powell Electrical Mfg. Co., 

, 65

(5th Cir. 1980); Jurgens v. EEOC, 

, 390-91 (5th Cir.

1990).     The district court found that the sexual harassment by

Williams was not severe enough that a reasonable person would have

felt compelled to resign.             This conclusion was strengthened by the

district court's finding that at the time Landgraf resigned USI was

taking action reasonably calculated to alleviate the harassment.

The district court further found that "as evidenced by the language


                                           4
in her resignation letter, Landgraf's motivation for quitting her

employment with USI was the conflicts and unpleasant relationships

she had with her co-workers."

      Landgraf argues first that the district court clearly erred in

finding that USI had taken steps reasonably calculated to end the

harassment.     We disagree.      Our review of the district court's

factual finding is limited.        As the Supreme Court has recently

described the scope of our review:            "If the district court's

account of the evidence is plausible in light of the record viewed

in its entirety, the court of appeals may not reverse it even

though convinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently." Anderson v. Bessemer

City, 

, 573-74 (1985).      There was evidence that USI had

given Williams its most serious form of reprimand and acted to

reduce his contact with Landgraf at the workplace.                   Landgraf

testified    that   Williams   continued    to    harass   her      after   his

reprimand, however, she did not report these incidents to USI

before resigning.      Title VII does not require that an employer use

the   most   serious   sanction   available      to   punish   an   offender,

particularly where, as here, this was the first documented offense

by an individual employee.     The district court did not clearly err

in concluding that USI took steps reasonably calculated to end the

harassment.

      Landgraf argues that the finding of no constructive discharge

was clearly erroneous.       We disagree.     The district court, after

hearing all the testimony in this case, concluded that Landgraf


                                    5
resigned for reasons unrelated to sexual harassment.   The evidence

in this case presented two possible reasons for Landgraf's decision

to resign:   problems with her co-workers, as evidenced by her note

or sexual harassment as stated in conversation with Bobby Martin.

Landgraf testified at trial that the sexual harassment was the

reason for her resignation.   She also stated that the reference to

"the devil [who] has been your leader so far" in her resignation

note was actually a reference to Williams.      The district court

concluded based upon this testimony and the note itself that the

problems with her co-workers actually caused her resignation.

Given these two plausible interpretations of the evidence, we must

affirm the district court's finding.    Landgraf also asserts that

the conflicts she had with her co-workers were as a result of her

problems with Williams.    There was conflicting evidence on this

question and the district court specifically found that Landgraf's

conflict with her co-workers was unrelated to the sexual harassment

by Williams.   The district court did not clearly err in finding

that Landgraf left her employment at USI for reasons unrelated to

sexual harassment.

     Moreover, even if the reason for Landgraf's departure was the

harassment by Williams, the district court found that, particularly

in light of the corrective actions taken by USI immediately before

Landgraf resigned, the level of harassment was insufficient to

support a finding of constructive discharge. To prove constructive

discharge, the plaintiff must demonstrate a greater severity or

pervasiveness of harassment than the minimum required to prove a


                                 6
hostile working environment.         Pittman v. Hattiesburg Municipal

Separate School District, 

, 1077 (5th Cir. 1981)

(constructive    discharge    requires     "aggravating      factors").     The

harassment here, while substantial, did not rise to the level of

severity necessary for constructive discharge.                Although USI's

investigation of this incident may not have been overly sensitive

to Landgraf's state of mind, the company had taken steps to

alleviate the situation and told Landgraf to let them know of any

further problems.         A reasonable employee would not have felt

compelled   to   resign    immediately     following   the    institution   of

measures which the district court found to be reasonably calculated

to stop the harassment.        We cannot say that the district court

clearly erred in rejecting the claim of constructive discharge.

                                    III.

     Landgraf asserts that the district court erred in failing to

make findings of fact and conclusions of law with regard to her

retaliation claim against USI.       USI argues that no findings on the

retaliation claim are necessary because Landgraf failed to prevail

on her claim of constructive discharge.          We agree.

     An adverse negative employment action is a required element of

a retaliation claim. Collins v. Baptist Memorial Geriatric Center,

, 193 (5th Cir. 1991).            The only possible adverse

employment action that Landgraf suffered after she complained to

Martin   about    the     sexual   harassment    would    be     the   alleged

constructive discharge.      Because the district court found that the

reason Landgraf resigned her position was her trouble getting along


                                      7
with her co-workers, she cannot prove constructive discharge on the

basis of retaliation.    As noted above, Landgraf asserts that her

troubles with her co-workers were as a result of her complaints

about Williams' harassment. However, the district court explicitly

found to the contrary and we cannot say that that finding was

clearly erroneous.      Accordingly,   Landgraf's   retaliation   claim

cannot prevail because she suffered no adverse employment action as

a result of her complaints.    

.

                                IV.

     Landgraf argues that even if she fails to demonstrate that she

was constructively discharged, she may still be awarded nominal

damages which would carry with them an award of attorneys' fees.

We recognize that some confusion may have arisen from our statement

in Joshi v. Florida State Univ., 

, 991 n.3 (5th Cir.

Unit B 1981), indicating in dicta that in some cases an employee

who suffered from illegal discrimination but was ineligible for

back pay might be entitled to nominal damages.        Several circuit

courts have explicitly held that such nominal damages are available

under Title VII in some cases. Huddleston v. Roger Dean Chevrolet,

, 905 (11th Cir. 1988); Baker v. Weyerhaeuser Co., 

(10th Cir. 1990).    See also Katz v. Dole, 

,

253 n.1 (4th Cir. 1983); T & S Service Associates v. Crenson, 

, 728 n.8 (1st Cir. 1981).     Only the Seventh Circuit has

directly rejected the award of nominal damages as relief in Title

VII cases.   Bohen v. City of East Chicago, Indiana, 

,

1184 (7th Cir. 1986).


                                  8
       We conclude that the Bohen court's rejection of nominal

damages as a Title VII remedy is the correct interpretation of the

statutory scheme.1            Title VII provides that where a court finds

that an employer has engaged in unlawful employment practices, it

may order action "which may include, but is not limited to,

reinstatement or hiring of employees, with or without back pay, .

. .or any other equitable relief as the court deems appropriate."

42 U.S.C. § 2000e-5(g).               We have consistently interpreted this

provision to mean that "only equitable relief is available under

Title VII."          Bennett v. Corroon & Black Corp., 

, 106

(5th       Cir.    1988).      Nominal   damages      such   as   those    awarded    in

Huddleston and Baker are legal, not equitable relief and are

therefore outside the scope of remedies available under Title VII.

(damages unavailable to redress Title VII

violations that do not result in discharge).

       Landgraf also asserts that she is entitled to equitable relief

in the form of a declaratory judgment, relying on the Eighth

Circuit's opinion in Bibbs v. Block, 

(8th Cir. 1985).

We conclude that no declaratory judgment is appropriate in this

case.       The purpose of equitable relief under Title VII is "to

restore the victim of discrimination to fruits and status of

employments as if there had been no discrimination."                      

.      Here,   because       Landgraf   voluntarily     left    her


       1
      We note, of course that under the amendments to Title VII
in the Civil Rights Act of 1991, remedies will no longer be
limited to equitable relief. However, for the reasons discussed
below, those amendments do not apply to this case.

                                              9
employment she was not deprived of any fruits of employment as a

result of the sexual harassment. Her argument that she is entitled

to a declaratory judgment for purposes of vindication because she

prevailed on the issue of whether sexual harassment occurred must

also fail.   See Laboeuf v. Ramsey, 

(D. Mass. 1980)

(allowing declaratory judgment for purposes of vindication).    USI

did not dispute at trial the fact of Landgraf's sexual harassment.

The only issues disputed were the propriety of USI's reaction to

the harassment and Landgraf's reason for resigning.    Landgraf did

not prevail on either of these issues and the district court did

not err in refusing to grant a declaratory judgment.

                                 V.

       Finally, we address the question of whether any provisions of

the Civil Rights Act of 1991 apply to this case.   Two provisions of

the Act would affect this case if applicable:       the addition of

compensatory and punitive damages and the availability of a jury

trial. Civil Rights Act of 1991, Pub. L. No. 102-166, § 102(a)(1),

102(c), 105 Stat. 1072-73 (1991).

       We recently addressed the issue of the Act's retroactivity in

Johnson v. Uncle Ben's, Inc., ____ F.2d ____, 

(5th

Cir. July 1, 1992), where we joined the other circuit courts which

have ruled on the issue in holding that § 101(2)(b) of the Act does

not apply to conduct occurring before the effective date of the

Act.    See Luddington v. Indiana Bell Telephone Co., ___ F.2d ___,

(7th Cir. June 15, 1992); Fray v. Omaha World Herald

Co., 

(8th Cir. 1992); Vogel v. City of Cincinnati,


                                 10


(6th Cir. 1992).            We need not repeat here our

discussion of the legislative history of the Act.           For the reasons

explained    in   Johnson,   we   conclude   that   there    is   no   clear

congressional intent on the general issue of the Act's application

to pending cases.    We must therefore turn to the legal principles

applicable to statutes where Congress has remained silent on their

retroactivity.

     As we noted in Johnson the legal principles surrounding the

retroactive application of statutes are somewhat uncertain in light

of the Supreme Court's decisions in Bradley v. Richmond School

Board, 

(1974) and Bowen v. Georgetown University

Hospital, 

(1988). We need not resolve the recognized

tension between the Bradley and Bowen cases, however, in order to

resolve the issue facing us here.         See Kaiser Aluminum & Chem.

Corp. v. Bonjorno, 

, 837, 

, 1572 (1990).

Even under the standard set forth in Bradley we conclude that these

two provisions of the Act should not be applied retroactively to

this case.

     The rule set forth in Bradley is that a court must "apply the

law in effect at the time it renders its decision, unless doing so

would result in manifest injustice or there is statutory direction

or legislative history to the contrary." 

.

In determining whether retroactive application of a statute will

wreak injustice, we consider "(a) the nature and identity of the

parties, (b) the nature of their rights, and (c) the nature of the

impact of the change in law upon those rights."       Belser v. St. Paul


                                    11
Fire and Marine Ins. Co., ___ F.2d ___ (5th Cir. July 9, 1992),

citing 

, 94 S.Ct. at 2019.

     We turn first to the provision allowing either party to

request a jury trial.      When this case was tried in February 1991,

the district court applied the law in effect at that time when it

conducted a bench trial on the Title VII claims.                  We are not

persuaded that Congress intended to upset cases which were properly

tried under the law at the time of trial.                 See Bennett v. New

Jersey,    

  (1985)   (Court   would    not   presume   that

Congress intended new grant regulations to govern review of prior

grants).    To require USI to retry this case because of a statutory

change enacted after the trial was completed would be an injustice

and a waste of judicial resources.          We apply procedural rules to

pending cases, but we do not invalidate procedures followed before

the new rule was adopted.        Belser, ___ F.2d ___ at _____.

     We now turn to whether the Act's provisions for compensatory

and punitive damages apply to pending cases.         We conclude that they

do not.     Retroactive application of this provision to conduct

occurring before the Act would result in a manifest injustice.             The

addition of compensatory and punitive damages to the remedies

available to a prevailing Title VII plaintiff does not change the

scope of the statute's coverage. That does not mean, however, that

these are inconsequential changes in the Act.                As Judge Posner

notes in Luddington, "such changes can have as profound an impact

on behavior outside the courtroom as avowedly substantive changes."

Unlike allowing prevailing plaintiffs to recover attorneys' fees as


                                     12
in   Bradley,   the   amended     damage     provisions    of   the   Act    are    a

seachange in employer liability for Title VII violations.                        For

large employers, the total of compensatory and punitive damage

which they are potentially liable can reach $300,000 per claim.

Civil Rights Act of 1991, § 102(3)(b)(3).

      The   measure    of    manifest   injustice    under      Bradley     is   not

controlled by formal labels of substantive or remedial changes.

Instead, we focus on the practical effects the amendments have upon

the settled expectations of the parties.                 There is a practical

point at which a dramatic change in the remedial consequences of a

rule works change in the normative reach of the rule itself.                       It

would be an injustice within the meaning of Bradley to charge

individual employers with anticipating this change in damages

available under Title VII.          Unlike Bradley, where the statutory

change   provided     only   an   additional     basis    for   relief      already

available, compensatory and punitive damages impose "an additional

or unforeseeable obligation" contrary to the well-settled law

before the 

.          We conclude that the

damage provisions of the Civil Rights Act of 1991 do not apply to

conduct occurring before its effective date.

      The judgment of the district court is AFFIRMED.




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