Reynold D. Klein v. McgowanReynold D. Klein v. Mcgowan
Before Bowman, Ross and Murphy, Circuit Judges.
Murphy, Circuit Judge.
After resigning from his position as a technician assistant at the Hennepin County Sheriff‘s Department, Reynold D. Klein sued the county, two of his supervisors and the current and former sheriff for sexual harassment and constructive discharge under
A.
Reynold D. Klein worked as an aide in the sheriff‘s communications division, from May 5, 1980 until he resigned on May 10, 1996. In January 1997, more than ten months after leaving the sheriff‘s оffice, Klein filed a charge with the Equal Employment Opportunity Commission (EEOC) claiming that he had been constructively discharged because a hostile work environment caused his resignation. After receiving a right to sue letter, he filed this action against Hennepin County, Sheriff Patrick D. McGowan, former Sheriff Donald Omodt, former Captain Donald H. Vodegel, and Communications Division Lead Technician Charles E. Venske. In his brief Klein states that he was harassed because he was perceived as “being or behaving like a homosexual or of not behaving in the ‘required mаnly’ way,” and claims he “would not have been treated the same way if he had been a woman.” Klein later dismissed his claims against the two sheriffs. In his thirty-seven page declaration in opposition to the remaining defendants’ motion for summary judgment, Klein alleged numerous incidents as pаrt of the harassment. These allegations concerned various comments and innuendoes and claimed discrimination in promotion and assignment of duties. Klein does not supply dates for most of the incidents, but they appear to span his sixteen years of employment.
Klein alsо claims that Venske failed to respond adequately to incidents of harassment he suffered from other employees. Klein alleges that he reported two separate incidents to Venske in September of 1993. Klein asserts that he overheard a co-worker say on September 2, “I‘ll use Vaseline; [Klein] knows all about that.” When he notified Venske of this comment, he says Venske discouraged him from filing a formal complaint. Later that same month, Klein overheard a co-worker say in the locker room, “[h]e‘s a homo. . . He‘s come out of the closet.” Klein was on the other side of a row of lockers when this was said, and the two other workers threw boxes over into his row. Klein alleges that Venske took no action after learning of this incident, although the affidavit of Lieutenant Bruce Lennox, Venske‘s immediate suрervisor, indicates that Venske reported this as well as Klein‘s earlier complaint. Lennox states that he interviewed Klein, who told him that he did not wish to pursue a formal complaint, and that Lennox nevertheless admonished the alleged harassers, distributed an anti-harassment memo to all employees in the division, and notified his superior officer of the chain of events. Klein also alleges that on some unspecified date Venske failed to act after overhearing another employee telling Klein “[y]ou‘re nothing but a fucking homo.”
Although Klein‘s declaration is vague on the point, Vodegel appears to have been Venske‘s supervisor and the office captain from the time that Klein began working in 1986 until Vodegel retired in 1993. Klein alleges that when he reported some unspecified incident of sexual harassment to Vodegel in “1981 or 1982“, Vodegel replied, “[t]hey‘re grown men. No, you can‘t change them.” Klein also alleges that in 1985 Vodegel demanded of him “[a]re you a leader or a follower,” and abruptly left the room “as if in a fit of rage” during the interchange that followed.
There is no evidence that Klein ever filed a formal complaint against the defendants with the Hennepin County Human Resources department. Klein asserts that he “was never told or informed about any process for reporting sexual . . . harassment“, although elsewhere in his declarаtion he describes a conversation he had with Venske concerning whether he should file a report following an incident of harassment. Appellees offer the affidavit of Syl Booth, the Hennepin County employee responsible for investigating all harassment complaints made by county employees. Booth describes in detail the grievance procedure for employees who wish to report harassment and states that all county employees receive a pamphlet which tells them what constitutes harassment and hоw to file a complaint. In his affidavit Lieutenant Lennox claims that he discussed the formal grievance procedure with Klein.
Before the district court ruled on the defendants’ motion for summary judgment, Klein voluntarily dismissed all counts against defendants McGowan and Omodt and his state law claims. The remaining claims against the county, Venske, and Vodegal under Title VII and
B.
Our review of a grant of summary judgment is de novo. Hanenburg v. Principal Mutual Life Insurance Co., 118 F.3d 570, 573 (8th Cir. 1997). While we view the facts in a light most favorable to the non-moving party, mere allegations which are not supported with specific facts are not enough to withstand the motion. Krenik v. County of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). See also Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1110 (8th Cir. 1998) (Conclusory assertions insufficient to make prima facie showing of Title VII violation).
Title VII prohibits employment discrimination based on sex. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998). A court evaluating a Title VII claim must evaluate the totality of the сircumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee‘s work performance. Phillips, 156 F.3d at 888, quoting Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Simple teasing, offhand comments, and isolated incidents generally cannot amount to severe or pervasive harassment. Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1158 (8th Cir. 1999).
Before bringing a Title VII action, a plaintiff must file a charge with the EEOC within 300 days of the event giving rise to the cause of action.
In order to make out a prima facie case that he was subjected to a hostile work environment a plaintiff must show that (1) he is a member of a protected group; (2) unwelcome harassment occurred; (3) a causal nexus existed between the harassment and his protected group status; (4) the harassment affected a term, condition, or privilege of employment; and (5) his employer knew or should have known of the harassment and failed to take prompt and effeсtive remedial action. Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999). Constructive discharge occurs when an employer deliberately renders the employee‘s working conditions intolerable and thus forces him to quit his job. Kimzey, 107 F.3d at 574. The conduct complained of must have been severe or pervasive enough to create an objectively hostile or abusive work environment. Harris, 510 U.S. at 21. If a plaintiff establishes that a supervisor with authority over him created a hostile work environment, he may be able to hold the employer vicariously liable. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-3 (1998), Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998).
Because Klein filed his Title VII charge with the EEOC on Januаry 21, 1997, he must demonstrate that conduct after March 28, 1996 constituted sexual harassment. Klein claims several incidents of alleged harassment occurred after that date: the filing of a deficiency slip, the threatened filing of a deficiency slip, Venske‘s refusal to issue him business cаrds, and his observation that Venske and the technicians were standing “in solidarity“.
Klein claims that the treatment he received in the sheriff‘s department also violated his substantive due process rights. Substantive due process may be violated if state action either shocks the conscience or offends judicial notions of fairness or human dignity. Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989). To meet his burden a
Klein cites Woodward v. City of Worland, 977 F.2d 1392 (10th Cir. 1992), as the сentral support for his substantive due process claim under
Like the Woodward plaintiff, Klein fаiled to seek formal redress of his grievances. He never filed a complaint during his sixteen years of employment, and he did not establish that a reasonable person would have believed that filing a formal complaint in his circumstances would be fruitless. The very authority which Klеin cites indicates that he was not constructively discharged because he did not take reasonable steps to seek relief.
Klein has not established a prima facie case under
For these reasons, the judgment of the district court is affirmed.