Ottman v. City of Independence, Mo.

• Decision Date: 03 September 2003
• Docket Number: No. 02-2335.,02-2335.
• Citation: 341 F.3d 751
• Parties: Mary OTTMAN, Plaintiff-Appellee, v. CITY OF INDEPENDENCE, MISSOURI, Defendant, Bruce Hahl, in his official and individual capacity; Rob Richardson, in his official and individual capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

341 F.3d 751

Mary OTTMAN, Plaintiff-Appellee, v. CITY OF INDEPENDENCE, MISSOURI, Defendant Bruce Hahl, in his official and individual capacity; Rob Richardson, in his official and individual capacity, Defendants-Appellants.

No. 02-2335.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2002.

Filed: September 3, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc October 1, 2003.

COPYRIGHT MATERIAL OMITTED

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

J. Earlene Farr, argued, Kansas City, MO, for appellant.

Kirk D. Holman, argued, Kansas City, MO, for appellee.

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Mary Ottman (Ottman) was employed as a city planner with the City of Independence, Missouri (City). Ottman filed a lawsuit against the City, Bruce Hahl (Hahl) and Rob Richardson (Richardson) alleging violations of 42 U.S.C. § 1983 (2000), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17 (2000) (Title VII), the Missouri Human Rights Act, Mo.Rev.Stat. §§ 213.010-213.137 (2000) (MHRA), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (2000). Defendants moved for summary judgment. The district court denied Hahl and Richardson summary judgment based on qualified immunity. Hahl and Richardson filed this interlocutory appeal, contending the district court erred in denying them qualified immunity. We reverse.

I. BACKGROUND

As Director of the Community Development Department (Department) for the City, Hahl hired personnel, recommended hiring salaries, and assigned work to Department employees. In January 1996, Hahl hired Richardson as a city planner at a starting salary of $34,200. Richardson had considerable planning experience, including experience working on City planning projects. Hahl claims he told Richardson that once Richardson completed his master's degree, Richardson would be eligible for a promotion to senior planner. Ottman contends Hahl assured Richardson that, upon completion of his master's degree, Richardson would be promoted to senior planner.

In May 1997, Hahl interviewed Ottman for a city planner position. Ottman had a master's degree in landscape architecture. During her interview, Hahl asked Ottman if she objected to working on landscape architecture and design projects. Ottman told Hahl she would not mind working on such projects, but she did not want them to comprise her principal work. Hahl told Ottman a senior planning position would be opening in the future, and Ottman could compete for the position along with another person in the office. Hahl hired Ottman at a starting salary of $29,500.¹

Hahl also hired Jim Marwedel (Marwedel) as a city planner.² Marwedel had a master's degree and considerable planning experience. Marwedel's starting salary was $33,996 ($2,833 per month). When Marwedel was hired, Ottman was earning $34,200 annually ($2,850 per month).

In May 1998, Richardson received his master's degree in urban planning. In August 1998, a senior planner position opened in the Department. Both Ottman and Richardson applied for the position. The Director of Human Resources certified Ottman and Richardson as eligible for the position. After interviewing Ottman and Richardson, Hahl promoted Richardson.³ When Ottman was not promoted, she did not file a formal complaint with either the Director of Human Resources or the City Administrator. She did, however, complain to Hahl, her immediate supervisor.

Within a few months of being employed in the Department, Ottman believed Hahl was giving her inferior job assignments because of her gender. Ottman repeatedly complained to Hahl about being displeased with her work assignments and about not being assigned to professionally significant planning jobs. Because of her landscape architecture background, some of Ottman's assignments were expressly requested by the mayor. It does not appear Ottman specifically complained to Hahl she was being denied significant jobs because of her gender. However, Ottman once complained to the City Manager about Hahl's sexual discrimination relating to a landscape screening project. Ottman could not recall when she made the complaint or what happened thereafter.

Ottman also believed Hahl discriminated against her by excluding her from weekly department meetings. Ottman does not recall complaining to Hahl about the exclusion and does not know during what time period the exclusion occurred. In the fall of 1998, Richardson attended a leadership training seminar which Ottman was not allowed to attend. Janet Groucher, a female co-worker, attended weekly department meetings and also attended the fall 1998 leadership training seminar.

Ottman contends Hahl and Richardson sexually harassed her by creating a hostile work environment. Ottman alleges Hahl treated female employees differently than males, and his disparate treatment was reflected in his words and actions. Ottman testified Hahl belittled her work and conversed with female employees in a superior and condescending tone, which he did not use when talking with men.

Ottman alleges Richardson made sexist remarks on a weekly, if not daily, basis. Richardson did not have supervisory authority over Ottman and did not have authority to recommend disciplinary action against Ottman. On at least three occasions, Ottman complained to Hahl about Richardson's hostile treatment. Ottman claims Hahl failed to take seriously her complaints against Richardson. Hahl spoke to Richardson about Ottman's complaints. Ottman also claims Richardson continued to harass her after Hahl met with Richardson, but Ottman never informed Hahl of Richardson's continuing harassment.

Ottman testified Hahl told her not to complain of harassment or discrimination to anyone but him. Although she orally complained to Hahl, Ottman never made a written complaint alleging harassment or discrimination based on gender or age. Ottman's last oral complaint to Hahl was made in December 1999. Ottman resigned in May 2000.

Ottman filed a fifteen-count suit against the City, Hahl, and Richardson, alleging constitutional and statutory violations. Ottman alleged one count of discrimination and sexual harassment under section 1983 against Hahl, in his individual capacity, and one count of sexual harassment under section 1983 against Richardson, in his individual capacity. The district court dismissed as time-barred two counts, alleging discrimination in promotion under Title VII and the MHRA. The district court denied the defendants' motion for summary judgment on the remaining claims, including Hahl's and Richardson's defense of qualified immunity. Hahl and Richardson appeal the denial of qualified immunity.

II. DISCUSSION

A. Overview

A defendant may immediately appeal a district court's denial of qualified immunity under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 525-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We review de novo a denial of qualified immunity. Holloway v. Reeves, 277 F.3d 1035, 1037 (8th Cir.2002).

Government officials who perform discretionary functions are entitled to qualified immunity unless their alleged conduct violated clearly established federal constitutional or statutory rights of which a reasonable person in their positions would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Recently, the Supreme Court reiterated the law is clearly established if it gives the official "fair warning" his conduct violated an individual's rights when the officer acted. Hope v. Pelzer, 536 U.S. 730, 739-40, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Guided by this precedent, we must consider the threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [defendants'] conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151.

B. Defendant Hahl

1. Failure to Promote

We turn first to Ottman's claim that Hahl denied her equal protection based on gender by failing to promote Ottman to the senior planning position. A government official may be liable upon a showing of deprivation of a constitutional or federal right. 42 U.S.C. § 1983. To establish a section 1983 cause of action, Ottman must establish she was deprived of a right "secured by the Constitution and laws" of the United States, and (2) the deprivation was caused by a person or persons acting under color of state law. 42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). We have held intentional gender discrimination in public employment by persons acting under color of state law violates the Equal Protection Clause of the Fourteenth Amendment and is actionable under section 1983. Marshall v. Kirkland, 602 F.2d 1282, 1298 (8th Cir.1979).

To succeed on her claim, Ottman must establish intentional gender discrimination. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Where, as in this case, no direct evidence of gender discrimination exists, we apply the McDonnell Douglas burden-shifting analysis to section 1983 employment discrimination claims as a way to establish intentional...