Anthony Slayden v. Center for Behavioral Medicine
No. 21-3009
United States Court of Appeals For the Eighth Circuit
November 17, 2022
KOBES, Circuit Judge.
Submitted: September 20, 2022
Before LOKEN, ARNOLD, and KOBES, Circuit Judges.
Anthony Slayden worked as a security officer at the Center for Behavioral Medicine (CBM). Slayden sued CBM, alleging a racially hostile environment, disparate treatment based on race, retaliation, and constructive discharge in violation of the Missouri Human Rights Act (MHRA) and Title VII of the Civil Rights Act of 1964. The district court1 granted summary judgment to CBM, and we affirm.
I.
Slayden worked as a security officer at CBM for around 21 years before he resigned in December 2019. On August 9, 2018, Slayden filed a grievance with CBM‘s Human Resources department about his supervisor Mike Seward‘s alleged harassment. HR had an investigator look into Slayden‘s grievance and found his complaints unsubstantiated.
On July 24, 2019, Slayden filed charges with the Missouri Commission on Human Rights (MCHR) and the EEOC. The description attached to the EEOC charge listed specific incidents of Seward‘s harassment only until August 10, 2018. Although the charge indicated that the discrimination was a “continuing action,” and listed October 16, 2018, as the latest date of discrimination, the description merely stated that HR decided Slayden‘s internal grievance was unsubstantiated on October 16, 2018. Slayden then filed this lawsuit, alleging a racially hostile work environment, disparate treatment based on race, and retaliation, all in violation of the MHRA,
Slayden testified that Seward was the only person who discriminated against him, and that Seward did nothing that Slayden considered retaliatory, discriminatory, or harassing after Slayden filed his grievance with HR on August 9, 2018. After filing the grievance, Slayden actively avoided Seward by leaving work by the back door. Slayden also testified to three incidents that he considered retaliation by HR, all of which happened in mid-to-late
The district court granted summary judgment to CBM, finding that Slayden‘s hostile work environment and disparate treatment claims were time-barred and that Slayden failed to exhaust administrative remedies for his retaliation claims. It also held that, to the extent that Slayden reframed his claims as a constructive discharge claim, he did not exhaust it.
II.
“We review a district court‘s decision to grant summary judgment de novo.” Beasley v. Warren Unilube, Inc., 933 F.3d 932, 936 (8th Cir. 2019). “Summary judgment is only appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” LeBlanc v. McDonough, 39 F.4th 1071, 1075 (8th Cir. 2022) (citation omitted).
A.
Slayden first argues that his hostile work environment and discrimination claims are not time-barred. Under the MHRA, a person must first file a charge with the MCHR within 180 days of the alleged discriminatory act.
Slayden insists that he filed his claim within 300 days of at least one act of harassment. He argues that his need to avoid Seward after filing the grievance was a result of Seward‘s “discriminatory animus,” and that he was continually harassed until Seward resigned in mid-2019. This contradicts the record. Slayden testified that Seward was the only person who discriminated against him, and that Seward did nothing that Slayden considered retaliatory, discriminatory, or harassing after Slayden filed his grievance with HR on August 9, 2018. Slayden further argues that CBM did nothing to remedy the harassment, and that the failure to take appropriate remedial action constitutes discrimination.3 Yet HR had Slayden‘s grievance investigated and found it unsubstantiated.
Last, Slayden argues that HR continued the harassment by threatening discipline,
Slayden‘s hostile work environment and discrimination claims are time-barred.
B.
Slayden next argues that he exhausted his retaliation and constructive discharge claims. “The exhaustion requirement may be satisfied if the civil claim grows out of or is like or reasonably related to the substance of the allegations in the administrative charge, but the civil suit can be only as broad as the scope of any investigation that reasonably could have been expected to result from the initial charge of discrimination.” Fanning v. Potter, 614 F.3d 845, 852-53 (8th Cir. 2010) (citation omitted) (cleaned up); see also EEOC v. Delight Wholesale Co., 973 F.2d 664, 668 (8th Cir. 1992). He argues that the EEOC charge covered these claims because they are like or related to the substance of the charge.
i.
While Slayden argues that his retaliation claims are like or related to the substance of his EEOC charge, he doesn‘t address how they are related. We may consider this argument waived. See Meyers v. Starke, 420 F.3d 738, 743 (8th Cir. 2005) (“To be reviewable, an issue must be presented in the brief with some specificity. Failure to do so can result in waiver.“).
Slayden‘s argument fails on the merits too. Slayden testified to three occasions he considered retaliation by HR, all of which occurred in mid-to-late 2019. But the charge‘s only references to HR‘s actions were about the finding that Slayden‘s August 2018 grievance was unsubstantiated and HR‘s failure to provide a grievance or complaint form when Slayden asked for one. Slayden never claimed that either action was retaliatory. And none of allegedly retaliatory actions he did testify to are “like or related to the substance of the allegations in the charge,” nor can they be “reasonably ... expected to grow out of the investigation triggered by the charge.” Delight Wholesale Co., 973 F.2d at 668. “[I]t is well established that retaliation claims are not reasonably related to underlying discrimination claims.” Wallin v. Minn. Dep‘t of Corr., 153 F.3d 681, 688-89 (8th Cir. 1998) (plaintiff had not exhausted his retaliation claim when he claimed the retaliation was in response to internal discrimination complaints because he failed to allege retaliation in his EEOC charge).
Slayden‘s charge described Seward‘s allegedly discriminatory actions, not HR‘s. Slayden also filed his EEOC charge almost a year after filing his August 2018 grievance, yet the charge didn‘t indicate that he had any issues with HR after it found the grievance unsubstantiated. See Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222-23 (8th Cir. 1994) (plaintiff had not exhausted her race discrimination claims because her EEOC charge “failed to allege any facts in the narrative section of her charge which raise the issue of race discrimination,” and the charge “[did] not even hint of a claim of race discrimination“); see also Henson v. Union Pac. R.R. Co., 3 F.4th 1075, 1080-81 (8th Cir. 2021)
ii.
Slayden has not exhausted his constructive discharge claim either. “A constructive discharge is a discrete act of discrimination or retaliation that stands separate and distinct from the continuing violation of a hostile work environment.” Henson, 3 F.4th at 1081. In Henson,5 we found that a plaintiff‘s constructive
discharge claim was not reasonably related to his charge allegations where the charge did not assert that he had been or was about to be constructively discharged and where the alleged constructive discharge did not occur until approximately nine months after his charge had been filed. Id. at 1082. Here, Slayden‘s charge gave no indication that he was about to be constructively discharged, and Slayden did not resign from CBM until approximately five months after he filed his charge. As we‘ve made clear, “the civil suit can be only as broad as the scope of any investigation that reasonably could have been expected to result from the initial charge of discrimination.” See Fanning, 614 F.3d at 852-53. Because a constructive discharge could not have been reasonably expected to result from Slayden‘s initial EEOC charge, Slayden has not exhausted his constructive discharge claim.6
III.
We affirm the district court‘s grant of summary judgment.