United States Court of Appeals
                   FOR THE EIGHTH CIRCUIT



                        No. 96-4046


Aja M. Crist, Catherine E. Miskowic,
                            *
Tracy J. Elbers,            *
                            *
         Appellants,        *
                            * Appeal from the United
States
         v.                 * District Court for the
                            * District of Minnesota.
Focus Homes, Incorporated, a*
Minnesota corporation; Focus* Homes
Corporation, a Minnesota corporation,
                            *
                            *
          Appellees.        *


                 Submitted:    June 11, 1997

                            Filed:     August 15, 1997


Before MURPHY,    HEANEY,     and   JOHN   R.     GIBSON,   Circuit
Judges.


HEANEY, Circuit Judge.
     This appeal presents the question whether a
residential   program    for   developmentally   disabled
individuals may be found liable for sexual harassment due
to its failure to respond appropriately to the conduct of
a   mentally  incapacitated   resident   toward   program
employees. We conclude that such a claim is cognizable
under Title VII and the Minnesota Human Rights Act.
Accordingly, we reverse the district court’s
grant of summary judgment for Focus Homes, Inc. and Focus
Homes Corp. (collectively “Focus Homes”) on the sexual
harassment claim and remand for further proceedings. In
all other respects,1 we affirm the district court.

                                          I.

       We state the facts in the light most favorable to
the appellants, Aja M. Crist, Catherine E. Miskowic, and
Tracy J. Elbers, as is appropriate on review of a grant
of summary judgment. Crist, Miskowic, and Elbers were
employees of Focus Homes, a for-profit organization that
operates over fifty residential programs for individuals
with developmental disabilities. In November 1994, Focus
Homes opened a new facility called Yates House, which
provided services for four individuals, all of whom were
diagnosed with mental retardation and autism.      Focus
Homes assigned the appellants to Yates House when it
opened. They were responsible for providing direct care
to the residents. In addition, Miskowic was the manager
of the facility, in charge of hiring and supervising
staff, Elbers was the assistant manager, and Crist held
the position of lead program staff, occasionally
supervising staff on the weekends.

    One of the four residents at Yates House, J.L., was
sixteen years old when he moved into the facility. He


      1
       The appellants brought additional claims against their employer, of which the
following remain on appeal: aiding and abetting sexual harassment, retaliatory
discharge, and infliction of emotional distress. For the reasons we state briefly at the
conclusion of the opinion, we agree with the district court that summary judgment for
Focus Homes was appropriate with respect to these claims.
                                           2
functioned at the level of a two-to-five-year-old child,
was nonverbal, and required significant direct personal
care.    Physically, he stood over six feet tall and
weighed more than two hundred pounds. Almost immediately
after he arrived at Yates House, J.L. displayed physical
aggression toward the staff and other residents.
According to the reports filled out by the staff, on
November 4, 1994, J.L. pulled at Elbers’ shirt and bra,
looked down her shirt, and attempted to rub his body




                           3
against hers.      On November 7, he grabbed a male
resident’s penis and otherwise physically attacked him.
On November 8, he pushed Crist against a door, forced her
right hand above her head, pulled open her jeans and her
blouse, grabbed her left breast, and pushed his weight
and erect penis against her stomach.         After Crist
successfully pushed J.L. off of her, he continued to hit
her and other staff members, pulled at their clothing,
and threw a clock at them.2

    That evening, Miskowic reported the November 8th
incident to her supervisor, Michael Maniaci. The next
day she went to Focus Homes’ corporate offices where she
reported J.L.’s assaultive behavior and arranged for an
instructor to come to Yates House immediately to provide
additional   physical  intervention   training.     That
afternoon, Maniaci came to Yates House and, after
reviewing the incident reports, he returned some of them
to Miskowic for clarification because he found them
confusing.    He also informed Miskowic that he had
canceled the instruction session she had arranged and
instead scheduled a meeting for November 14th with Focus


      2
      In its brief, Focus Homes minimizes J.L.’s conduct and offers a different
account of these events:

      Through it all, there is no indication that J.L. was acting violently. Elbers,
      who arrived immediately after Crist freed herself, noted that J.L. did not
      appear angry or agitated and no further physical intervention was
      necessary. Notably, this was an isolated incident; Crist never observed
      J.L. exhibit this specific behavior before or after November 8.

(Appellee’s Br. at 6 (citations to the record omitted).) At this juncture, however, we
accept the facts as stated by the appellants.
                                            4
Homes’ behavioral consultant, Bruce Barthel-Wagner.

    At the November 14th meeting, appellants informed
Barthel-Wagner and Maniaci of J.L.’s behavior. In the
interim week, his aggressive conduct continued, including
an incident in which he had knocked Crist unconscious.
Appellants testified




                            5
in their depositions that Barthel-Wagner responded to
their concerns by “leering” at Crist’s breasts and
commenting, “Well, come on, he’s a breast man.”3 From
this comment, the appellants believed that their
complaints were not being taken seriously and felt that
they lacked any support whatsoever from Focus Homes. The
record supports that Barthel-Wagner suggested alternative
methods for redirecting J.L.’s behavior. He determined
that J.L. needed a written behavior program, which would
instruct staff how to react to J.L. to reinforce his
positive behavior and to replace his maladaptive
behaviors. Maniaci also stated that he would develop a
safety plan for Yates, which would include a sexuality
assessment. It is unclear from the record, however, when
or even if Focus Homes implemented the behavior or safety
plan.    Elbers stated in her affidavit that upper
management repeatedly assured her that Focus Homes would
provide a written behavior program and safety plan for
J.L., but that it had done neither before she quit her
job in March 1995.

         On December 1, 1994, an interdisciplinary team
consisting of a county social worker, Focus staff, and
J.L.’s family met to assess his first month at Yates
House.    They discussed his behavior and treatment
options, including the possibility of implementing state-

      3
        Focus Homes contends that it is undisputed that it disciplined Barthel-Wagner
as soon as the breast comment was reported to Focus management on February 2,
1997. The appellants contend that because Maniaci attended the November meeting,
Focus Homes was aware of the comment immediately and should have done something
well before February. Barthel-Wagner denied ever making the comment. Again, we
leave the factual disputes as to whether the comment was made and what Focus Homes
did in response for the district court to resolve in the appropriate proceeding.
                                         6
regulated deprivational procedures.    On December 6th,
Focus Homes provided the Yates staff with intervention
training that specifically addressed J.L.’s behavior and
his large physical stature.

    The number of reported violent incidents involving
J.L. decreased in December, although for part of that
time J.L. was away for the holidays. J.L.’s aggressive
conduct




                           7
began again in the new year, and the appellants continued
to report it.    As reported, J.L. attempted to assault
another resident in late December, but staff restrained
him.   In January and February, over thirteen reports
involved J.L.’s grabbing of the appellants’ breasts,
buttocks, or genital areas. He also frequently pulled at
their clothing and attempted to undress them. At least
three times, he attempted to digitally penetrate Crist.
It was also reported that J.L. masturbated frequently and
repeatedly exposed himself.

    In late January, in response to the appellants’
complaints, Focus Homes sent Randy Dietrich to Yates
House to discuss J.L.’s escalating behavior with the
staff. Dietrich began to work occasionally at the home,
providing direct care to J.L. Another male employee also
began providing direct care to J.L. in early February.
Throughout February, Focus Homes met several times to
discuss J.L.’s behavior and treatment options. Because
the school had not performed a sexuality assessment of
J.L., which was to be part of Maniaci’s safety plan,
Focus Homes determined that one would be completed by
March 1, 1995.

    On February 10, 1995, the appellants filed an
anonymous claim of neglect regarding J.L. under the
Minnesota Vulnerable Adult Act. On the 13th, Focus Homes
discovered that the report had been filed.      Two days
later, Crist was asked to participate in an observation
exercise in which she would permit J.L. to grab her so
that Focus Homes executives could view the problematic
conduct.   She refused to participate and instead gave
Focus Homes her two-week termination notice. Miskowic

                            8
and Elbers gave their notices on February 23rd.

    Appellants initiated this lawsuit on November 8,
1995, claiming, inter alia, that Focus Homes’ inadequate
response to J.L.’s behavior violated both Title VII and
the MHRA. Specifically, they claimed that Focus Homes
had a duty under both statutes to take prompt and
appropriate corrective action to protect them from J.L.’s
behavior.    Focus Homes moved for summary judgment,
arguing that it had no duty to act because




                            9
J.L.’s behavior did not constitute sexual harassment and
because it could not control his behavior. Focus Homes
further argued that even if it did have such a duty, its
response to appellants’ concerns was timely and
appropriate.   The district court granted Focus Homes’
motion for summary judgment and Crist, Miskowic, and
Elbers appeal.

                          II.

    Contrary to the district court’s opinion and Focus
Homes’ arguments on appeal, the thrust of appellants’
lawsuit is Focus Homes’ conduct in response to
appellants’ complaints about J.L.’s physically aggressive
behavior, not J.L.’s underlying conduct. The appellants
assert that Focus Homes’ failure to adequately respond to
their concerns regarding J.L.’s behavior constitutes
sexual harassment in violation of state and federal law
prohibiting employment discrimination based on sex. See
42 U.S.C. § 2000e-2(a)(1); Minn. Stat. § 363.03(2)(c).
To prevail on their sexual harassment theory, the
appellants must prove that: (1) they are members of a
protected group; (2) they were subject to unwelcome
sexual harassment; (3) the harassment was based on sex;
(4) the harassment affected a term, condition, or
privilege of employment; and (5) the employer knew or
should have known of the harassment and failed to take
appropriate remedial action. See Callanan v. Runyun, 

, 1296 (8th Cir. 1996); Klink v. Ramsey County,

, 901 (Minn. Ct. App. 1986).

    The district court rejected the appellants’ claim on
two bases. It held that, given the unique set of facts,

                           10
particularly J.L.’s severe developmental disabilities,
his conduct could not constitute sexual harassment. Even
if it did, according to the district court, Focus Homes
could not be held responsible for his behavior because it
could not control the behavior. Although we recognize
that this case proposes a unique application of Title VII
and the MHRA, the district court’s misplaced emphasis on
J.L.’s inability to form intent, rather than on Focus
Homes’ responsibility to its employees, sweeps too
broadly.    The court’s ruling essentially permits a
residential care provider like Focus Homes to tell its
employees that they assume the risk of




                           11
working with developmentally disabled individuals and
that they have no right to expect a safe working
environment. On the other hand, strict liability on the
part of such employers for the conduct of its residents
would simply constitute a swing to the opposite extreme.
We believe that the EEOC guidelines and MHRA strike a
balance between the two extremes and, correctly applied,
preclude the grant of summary judgment in this case.

    Under both state and federal law, the definition of
sexual harassment includes “physical conduct of a sexual
nature” when “submission to such conduct is made either
explicitly or implicitly a term or condition of an
individual’s employment” or when “such conduct has the
purpose or effect of unreasonably interfering with an
individual’s    work   performance    or    creating   an
intimidating, hostile, or offensive working environment.”
29 C.F.R. § 1604.11(a)(1), (3); see also Minn. Stat. §
363.01,   subd.   41(1),   (3)   (substantially   similar
definition).     The appellants have presented facts
sufficient to support a finding of sexual harassment
under the plain language of either definition.

    With respect to the first part of the definition,
there is little dispute that J.L.’s behavior constituted
physical conduct of a sexual nature. A reasonable fact
finder could also find that Focus Homes’ management did
not   take   the   appellants’  concerns   seriously--as
evidenced, for example, by Barthel-Wagner’s “breast man”
comment--or did little in an attempt to ensure their
safety. Crist believed that Focus Homes wanted her to
submit to J.L.’s conduct to observe it for themselves.
In light of these allegations, a fact finder could

                           12
characterize Focus Homes’ response as implicitly or even
explicitly requiring the appellants to endure repeated
sexual assaults as an essential part of their job.
    The record also supports a finding that the repeated
sexual contact by J.L. and the belief that Focus Homes
was not going to do anything to stop it unreasonably
interfered with the appellants’ work performance or
created an intimidating, hostile, or




                           13
offensive working environment.     As the district court
acknowledged and the regulations make clear, the actor
who engages in the physical conduct need not have the
intent to create an abusive working environment. Rather,
the focus of sexual harassment cases is primarily on the
effect of the conduct.       As the Supreme Court has
reiterated, the conduct must be sufficiently severe or
pervasive to create an environment that a reasonable
person would find hostile or abusive and that actually
altered the conditions of the victim’s employment. See
Harris v. Forklift Sys., Inc., 

, 302
(1993). The determination of whether an environment is
“hostile”    or   “abusive”    requires    particularized
consideration of the circumstances, including the
frequency of the conduct and its severity, 

this case, the appellants’ expectations given their
choice of employment.4 In light of the factual disputes
in the record, particularly with respect to the severity
of J.L.’s conduct and the effect that it had on the
appellants, this fact-intensive determination should be
made by a fact finder after a full trial.
    Although the district court did not reach this
element, a reasonable jury could also find that J.L.’s
conduct was based on sex.      Although he did act out

      4
       In its amicus brief, the Association of Residential Resources in Minnesota
argues that the appellants’ interpretation of the law will lead to absurd results. For
example, it suggests that a health care professional hired to care for an individual with
Tourette’s Syndrome could later sue for sexual harassment because of sexually explicit
language the patient repeatedly uttered. We disagree. The appellants do not seek a
blanket rule that all sex-related conduct on the job necessarily constitutes sexual
harassment. Rather, consistent with our holding today, they argue that sexual
harassment cases are necessarily fact-intensive and must be decided on a case-by-case
basis with proper consideration of all relevant facts.
                                           14
against a male resident, his aggression was directed
primarily at female employees; in fact, when male care
providers began working at Yates House, the incidents of
abuse were less frequent. Again, it may be argued that
J.L. had no intent to target women, but a finding that
his conduct disproportionately affected female staff
could support a determination that the harassment was
based on sex. See Kopp v. Samaritan Health Sys., Inc.,
13




                           

, 269 (8th Cir. 1993) (where record supported
incidents of abuse primarily involved women, if proven at
trial, plaintiff could prevail on claim that conduct was
gender-based).

    If a fact finder were to determine that J.L.’s
conduct constituted sexual harassment based on sex, it
must then address whether Focus Homes was aware of the
conduct and failed to respond appropriately. Given the
numerous incident reports filed by the appellants, Focus
Homes undoubtedly was aware or should have been aware of
J.L.’s behavior. Focus Homes’ liability thus turns again
on a fact-intensive consideration, this time whether
Focus Homes’ response was immediate or timely and
appropriate in light of the circumstances, particularly
the level of control and legal responsibility Focus Homes
has with respect to J.L.’s behavior.     See 29 C.F.R. §
1604.11(e); Minn. Stat. § 363.01, subd. 41(3).        The
district court decided that Focus Homes did not have any
control over J.L.’s conduct because it could not have
done anything to stop him immediately.          While we
recognize that Focus Homes faced multiple obstacles in
immediately preventing J.L. from acting out, including
J.L.’s limited ability to understand or respond to
directives and the regulatory framework within which
Focus Homes must operate, that does not end the inquiry.
Focus Homes clearly controlled the environment in which
J.L. resided, and it had the ability to alter those
conditions to a substantial degree.       The appellants
requested that Focus Homes provide additional male staff,
more training, and alarms or emergency back-up procedures
to address their concerns.        They also sought the
implementation of a state-regulated deprivational program

                           16
and medication of J.L. to control his sexual urges. In
its brief, Focus Homes contests the possibility or
effectiveness of implementing any of the appellants’
suggestions. Conflicting expert opinions in the record,
ranging from “Focus Homes appeared to exacerbate this
problem with unnecessary delays, omissions, inadequate
training and imprudent decisions” (Appellant’s App. at
374) to “Focus Homes’ response . . . was exemplary” (Id.
at 387) further highlight that factual disputes remain as
to whether Focus Homes’ response was appropriate. The
district




                           17
court should not have foreclosed this factual inquiry.5
We thus reverse the grant of summary judgment on
appellants’ sexual harassment claim.

    Turning to appellants other claims, we frankly do not
understand the contention that Focus Homes aided and
abetted in the sexual harassment in violation of Minn.
Stat. § 363.03, subd. 6(1)-(2), particularly who it is
that Focus Homes is alleged to have aided or abetted. We
also agree with the district court that appellants have
not offered sufficient evidence that Focus Homes
retaliated against them for filing a Vulnerable Adult Act
claim. Assuming that Focus Homes did not invite Miskowic
and Elbers to attend meetings about the residents at the
end of February, that conduct alone does not rise to the
level of an adverse employment action. Moreover, by the
time the claim was filed, the conflict between the
appellants and Focus Homes had long been brewing and was
much more likely the cause of any action by Focus Homes
against the appellants than the Vulnerable Adult Act
claim. Finally, we agree with the district court that
appellants have not presented sufficient evidence to
prove a claim of either intentional or negligent
infliction of emotional distress under Minnesota law.
Focus Homes’ response to appellants’ concerns, even
viewed in the most favorable light to the appellants,
does not meet the very high standard of “extreme and
outrageous” conduct necessary to establish a claim for
intentional infliction of emotional distress.         See


      5
       We caution the district court, however, that the inquiry is not whether Focus
Homes’ response was the best course of action possible, but rather whether it was
appropriate in light of all the circumstances.
                                        18
Haagenson v. National Farmers Union Property & Cas. Co.,

, 652 n.3 (Minn. 1979) (conduct must be “so
atrocious that it passes the boundaries of decency and is
utterly intolerable to the civilized community”) (citing
Restatement (Second) of Torts § 46 cmt. d (1965)). Nor
have the appellants alleged that they suffered any
physical injuries as a result of their alleged severe
emotional distress, a necessary element for their
negligence claim. See K.A.C. v. Benson, 

,
557 (Minn. 1995) (emotional distress must have attendant
physical manifestations). We




                           19
therefore affirm the district court’s grant of summary
judgment for Focus Homes on these four claims.

                          III.

    Accordingly, we reverse the district court’s grant of
summary judgment for Focus Homes on appellants’ sexual
harassment claim and remand for action consistent with
this opinion.    In all other respects, we affirm the
district court.

    A true copy.

        Attest.

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




                            20