Klein v. McGowan

• Decision Date: 20 October 1999
• Docket Number: No. 99-1866,99-1866
• Citation: 198 F.3d 705
• Parties: (8th Cir. 1999) 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. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 705

198 F.3d 705 (8th Cir. 1999)

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 FOR THE EIGHTH CIRCUIT

Submitted: October 20, 1999

Filed: December 20, 1999

Appeal from the United States District Court for the District of Minnesota.

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 42 U.S.C. §1983, 42 U.S.C. §2000e et seq. (Title VII), and the Minnesota Human Rights Act (MHRA), Minn. Stat. Ch. 363 (1996), and for intentional infliction of emotional distress. The district court¹ granted summary judgment for the defendants, and Klein appeals.

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 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 supervisor, 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 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 §1983 were dismissed by the district court on the motion of the defendants for summary judgment. The court ruled that the Title VII claims were not timely and that Klein had not made out a prima facie case that the violations alleged were severe or pervasive or based on sex and that his §1983 claim failed because he had not made out a prima facie case of constructive discharge.

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. Appellants 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. Appellants assert that Klein has not made out a §1983 violation because he has not shown that a reasonable person would have felt compelled to resign, he has not established sufficient involvement of the individual defendants to make them liable, Venske and Vodegal are entitled to qualified immunity, and the claim is time barred.

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...