Hervey v. County of Koochiching

• Decision Date: 09 June 2008
• Docket Number: No. 06-3891.,06-3891.
• Citation: 527 F.3d 711
• Parties: Florence HERVEY, Appellant, v. COUNTY OF KOOCHICHING; Sheriff Duane Nelson, individually and in his official capacity; Undersheriff John Mastin, individually and in his official capacity, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

527 F.3d 711

Florence HERVEY, Appellant, v. COUNTY OF KOOCHICHING; Sheriff Duane Nelson, individually and in his official capacity; Undersheriff John Mastin, individually and in his official capacity, Appellees.

No. 06-3891.

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2007.

Filed: June 9, 2008.

Celeste E. Culberth, argued, Leslie L. Lienemann, on the brief, St. Paul, MN, for appellant.

Ann Goering, argued, Eric J. Quiring, on the brief, Minneapolis, MN, for appellee.

Before RILEY, MELLOY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Florence Hervey brought a claim pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Minnesota Human Rights Act, Minn.Stat. § 13.01 et seq., alleging that her employer, Koochiching County, and supervisors Duane Nelson and John Mastin, discriminated against her on the basis of her sex, and retaliated against her for participation in a protected activity. She also brought a state claim against the County for violation of the Minnesota Government Data Practices Act, Minn.Stat. § 13.02, subd. 7. The district court¹ granted summary judgment in favor of the defendants on all claims. Hervey v. County of Koochiching, No. 04-4537, 2006 WL 2990515 (D.Minn. Oct. 20, 2006). We affirm the dismissal of the discrimination and retaliation claims, and remand with directions to dismiss the Data Practices Act claim without prejudice.

I.

Because we are reviewing a grant of summary judgment, we describe the facts in the light most favorable to Hervey. Hervey worked for 25 years as a corrections officer in the Koochiching County Jail. In 2002, she was promoted to the newly-created position of jail administrator. At that time, Sheriff Duane Nelson decided that the jail administrator would report directly to him, rather than to Robert Byman, the undersheriff and second in command.

Hervey, Byman, and Nelson worked without incident for two years. Byman then announced his retirement, and Nelson selected John Mastin to be the new undersheriff. Even before his official start date, Mastin convinced Nelson to change the reporting structure of the department, so that all employees, including Hervey, reported through him. On April 3, 2003, a new organizational chart was distributed to the staff indicating this change.

Hervey objected to the new reporting structure. She e-mailed Nelson, explaining that her job description showed her reporting directly to him, not to the undersheriff. Two days later, Nelson called a meeting with Hervey, Byman, and Mastin. At the meeting, Nelson became upset with Hervey. He told Hervey that her e-mail had made him "so damn mad," that she was "disrespectful," and that he had received complaints from employees in the courthouse who were concerned that Hervey was trying to run the department. He also told her that the county commissioners wanted to reevaluate the need for a jail administrator. During this exchange, Hervey told Nelson that he had "respectful workplace issues." After an hour, Byman and Mastin left the room and Nelson apologized to Hervey. He gave her a hug and said, "you're going to have problems with [Mastin], aren't you?"

Disputes continued between Hervey and her two supervisors, Nelson and Mastin. On September 15, 2003, Hervey sent an e-mail to the county attorney asking whether it was lawful for her to be driving in a patrol car with a shotgun in it. When Nelson learned that Hervey had sought advice outside of the department without checking with him, he became angry. Nelson and Mastin stormed into Hervey's office and asserted that her action was in direct violation of a departmental directive, which stated that "[p]rior to going outside the department with any departmental concerns, approval shall be obtained from the Sheriff or [Undersheriff]." Nelson also accused Hervey of going behind his back to the county board and county coordinators.

After this incident, Mastin and Nelson gradually reduced Hervey's duties as jail administrator. Shortly after Mastin became the undersheriff, he asked Hervey to provide a written explanation of her job duties, and an explanation of who performed those duties before the jail administrator position was created. Hervey perceived this request as a message that her position was unnecessary. Then, in late October 2003, Mastin told Hervey that he was going to take some of her responsibilities away from her, and transfer them to himself and the sheriff's secretary. Mastin also informed Hervey that she would keep the title of jail administrator, but that the position would be eliminated after she left the department.

During the fall of 2003, the County Board expressed concern that a jail administrator position was not necessary. As an alternative to eliminating the position, Nelson agreed to cut the budget for part-time corrections officers, with a consequence that Hervey was required to fill some of the lost shifts. Mastin informed Hervey that she must work two hours each day as a corrections officer, starting January 1, 2004, because the department was having budget problems.

On February 6, 2004, Mastin conducted a performance evaluation of Hervey, and gave her mixed reviews. He gave her high ratings for her knowledge of the position and productivity, but low ratings for teamwork, judgment, and dependability. Mastin's overall rating of Hervey was two out of five. He felt that she was supportive of her own staff in the corrections area, but needed to become a team player within the overall department.

Hervey did not agree with Mastin's evaluation. The next Monday, February 9, she decided that she was going to take time off to prepare a formal complaint against Mastin and Nelson. She left a message on Mastin's voicemail on Monday, and told two of her subordinates that she would not be at work on Tuesday. Tuesday night, Hervey again called two of her subordinates to inform them that she would be gone on Wednesday. She asked them to leave a voicemail for Mastin. Hervey did not inform Mastin and Nelson, however, that she intended to file a complaint against them.

Mastin called Hervey at home Wednesday morning to ask why she had not been at work. He claimed that he had not received a voicemail from her, and that he wanted to meet with her on Thursday morning to discuss her absences. At the Thursday morning meeting, Mastin called Hervey a liar, again stating that he had not received a voicemail message. Hervey then told Mastin that she had filed a complaint with the Minnesota Department of Human Services. Mastin told Hervey that when the sheriff returned to the office, the three of them would meet, and Mastin told her he would "suggest to the sheriff that you report to work from now on in brown because you are no longer a supervisor." (Hervey App. 34).

On February 13, Mastin wrote to Sheriff Nelson, recommending that Hervey "continue as Jail Administrator with duties to be reviewed and discussed but wear the same uniform as the other correctional officers." (Hervey App. 174). Mastin opined that Hervey had "many admirable abilities," but that "her leadership and judgment" were inadequate. (Id. at 173). He listed six reasons for his recommendation: (1) Hervey's "wearing the white shirt of a supervisor has caused and will continue to cause tension among staff and lower morale within our office and other agencies," (2) the position of Jail Administrator as it had been conducted was not consistent with the formal job description, (3) Hervey failed "to responsibly supervise and provide adequate attention to individuals that were not ... able to attain the skills to perform their duties," and failed to "provide accurate, timely, and pertinent information required for the safety of the public and officers," (4) Hervey failed "to maintain credibility and integrity with supervisors by repeatedly providing misleading or incorrect requested information, not following directives, [and] causing or provoking situations by being argumentative or threatening," (5) Hervey failed "to work toward a teamwork approach that ... would support the entire office in its mission to provide security and integrity to [the] community," and (6) Hervey was not "truthful with her supervisor when asked a direct question regarding an absence from work." (Id.).

Nelson did not change Hervey's job title or reduce her pay in response to Mastin's memorandum. Hervey points to no evidence that she was prohibited from wearing a white shirt to work, as Mastin had recommended. On February 18, 2004, however, Mastin issued a memorandum, stating that all vacation time, office schedules, and memoranda regarding the agency must be cleared by him. (County App. 190). Mastin stated that the sheriff already had made this clear to him, but in light of Hervey's recent absences, Mastin wanted to make this point clear to Hervey and the rest of the staff. Mastin also took away Hervey's master key, because he was told that Hervey had been in his office while he was not there. Mastin replaced the master key with a key that would open only Hervey's office. In a letter to the county attorney, Hervey's attorney asserted that these actions "completely undermine[d] any authority Ms. Hervey has with her subordinates," and "demean[ed] her publicly to her colleagues in all law enforcement agencies that use the law enforcement center." (County App. 188).

On March 2, 2004, Nelson and Mastin placed documentation in Hervey's personnel file of "the oral warning" regarding events of February 10. The memorandum warned Hervey for (1) "not following the directive to properly request leave from your supervisor before taking time off," and (2) "not being truthful to your supervisor regarding the notification of the request for time off." (Id. at 122). The notice advised that "[f]urther reoccurrence of these actions will result in discipline," and that the documentation would be removed from Hervey's personnel file in one year, if...