Reynold D. KLEIN, Plaintiff-Appellant, v. Patrick D. McGOWAN, in his capacity as Sheriff of Hennepin County, and in his individual capacity; Hennepin County, a political subdivision of the State of Minnesota; Donald J. Omodt; Charles E. Venske; Donald H. Vodegal, in their official capacities with the Hennepin County Sheriff‘s Department, and in their individual capacities, Defendants-Appellees.
No. 99-1866.
United States Court of Appeals, Eighth Circuit.
Submitted: Oct. 20, 1999. Filed: Dec. 20, 1999.
198 F.3d 705
Beverly J. Wolfe, Minneapolis, Minnesota, argued (Amy Klobuchar, on the brief), for Defendants-Appellees.
Before: BOWMAN, ROSS and MURPHY, Circuit Judges.
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 office, 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 manly’ 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 part 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.
Venske supervised Klein from 1986 until September of 1995. Among Klein‘s complaints tied to a date are several incidents involving Venske. Klein asserts that Venske said to him in 1986, “If I ever find out you‘re a queer, I‘ll fire you,” and in August 1989, “go home and play with yourself.” Years later, on February 27, 1996, Venske announced that all of the technicians other than Klein would receive business cards. Venske issued Klein a disciplinary deficiency slip on March 28, 1996, after observing him flush a toilet with his foot. Venske noted on the slip that “Reynold has been verbally warned not to kick the flush handle on the men‘s stool ... The handle has had to be replaced several times in the past year.” Several weeks later when Klein called in sick less than an hour before his shift began, Venske told him, “[c]alling in 55 minutes before the start of your shift is against the rules. That‘s worthy of another deficiency report.” Klein does not indicate that such a report was ever filed. Klein says that “during [his] last few days” of work, he found Venske and six technicians standing behind his workbench in a semi-circle “as a symbol of their solidarity among themselves and against [him].” He also makes other assertions without any time reference. He claims to have overheard Venske discussing his sexual preference with another employee, for example, and asserts that Venske harassed him by filing “unjustifiably low performance ratings” and that Venske assigned him menial tasks and periodically threatened him with dismissal.
Klein also 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
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 declaration 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 how 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
On appeal, Klein argues that there are material issues of fact related to his claims and to whether a hostile work environment caused him to be constructively discharged. Appellees argue that Klein failed to make out a prima facie case of a Title VII violation because the alleged conduct was not severe or pervasive, and was not due to his sex, that discrimination based upon sexual orientation does not fall within Title VII, and that the bulk of his allegations fall outside the 300 day limitations period. Appellees assert that Klein has not made out a
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 circumstances, 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, 114 S.Ct. 367, 126 L.Ed.2d 295 (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 effective 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, 141 L.Ed.2d 662 (1998), Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998).
Because Klein filed his Title VII charge with the EEOC on January 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 four incidents alleged during the 300 day limitation period do not amount to severe or pervasive harassment, nor are they tied to sex. Klein has not produced evidence that Venske‘s use of the office disciplinary procedure was based on sex or that he himself did not do what was charged. Similarly, Klein has not set forth sufficient facts to support his claim that Venske‘s allegedly discriminatory distribution of business cards or his standing with the technicians amounted to harassment on the basis of sex. Moreover, these incidents did not rise to the level of severe or pervasive harassment. Other allegations about conduct occurring at some unspecified time, or between 1986 and March 28, 1996, may not be considered since they have not been shown to fall within the 300 day limitation period and Klein has not established a continuing violation. The district court did not err in dismissing his Title VII claim as untimely.
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 central support for his substantive due process claim under
Like the Woodward plaintiff, Klein failed 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 Klein 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