                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                         NOV 13 1998
                                 FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

    SHERRY L. HOUCK,

                   Plaintiff-Appellant,

    v.                                                    No. 97-3312
                                                   (D.C. No. 95-CV-4067-RDR)
    CITY OF PRAIRIE VILLAGE,                                 (D. Kan.)
    KANSAS; BARBARA J. VERNON,

                   Defendants-Appellees.

    --------------------------------------------

    JOHNSON COUNTY SHERIFF’S
    DEPARTMENT,

                   Movant.




                                 ORDER AND JUDGMENT       *




Before PORFILIO , KELLY , and HENRY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff brought this action against her former employer, the City of Prairie

Village, and her former supervisor, Barbara Vernon, alleging discrimination in

violation of Title VII, 42 U.S.C. §§ 2000e through 2000e-17, 42 U.S.C. § 1983,

and the Kansas Act Against Discrimination, Kan. Stat. Ann. §§ 44-1001     et seq. 1

The district court granted summary judgment in favor of defendants, finding that

some of plaintiff’s claimed instances of discrimination occurred outside the

limitations period, and that, regarding the remaining instances, plaintiff could

show neither a hostile work environment, nor municipal or supervisory liability

under § 1983. Plaintiff appeals the district court’s grant of summary judgment in

favor of defendants.




1
       We will address plaintiff’s Title VII and § 1983 claims on appeal. Even
though plaintiff includes argument in her appellate brief based on the Kansas Act
Against Discrimination, she has waived that claim. Plaintiff represented to the
district court that she was withdrawing her claim brought pursuant to that state
act, and, thus, the district court did not address the claim.   See Houck v. City of
Prairie Village , 977 F. Supp. 1128, 1132 n.5 (D. Kan. 1997). Consequently, we
do not consider it on appeal.       See O’Connor v. City & County of Denver , 894
F.2d 1210, 1214 (10th Cir. 1990).

                                         -2-
       We review the grant of summary judgment de novo and apply the same

standard as did the district court.      See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th

Cir. 1996). Summary judgment is appropriate if there is no genuine issue as to

any material fact and they are entitled to judgment as a matter of law.      See id. In

determining whether there is a genuine issue as to any material fact, “we examine

the factual record and reasonable inferences therefrom in the light most favorable

to [plaintiff].”   Id. (quotations omitted). Guided by these standards, we affirm.


                                      Statute of Limitations

       The district court found that many of plaintiff’s claims were based on

instances that occurred outside the statute of limitations, and that, therefore,

claims based on those instances were time-barred.         See Houck , 977 F. Supp. at

1132-33 (finding certain claims against the City time-barred);       Houck v. City of

Prairie Village , 924 F. Supp. 120, 121-23 (D. Kan. 1996) (finding certain claims

against defendant Vernon time-barred). In so finding, the district court declined

to accept plaintiff’s argument that the continuing violation theory saved the

claims. We agree with the district court that the continuing violation theory does

not apply to save the time-barred claims.

       We note at the outset that this court has never specifically held that the

continuing violation theory applies to claims brought pursuant to § 1983.       See

Hunt v. Bennett , 17 F.3d 1263, 1266 (10th Cir. 1994). Indeed, we have

                                               -3-
recognized that “the continuing violation theory is a creature of the need to file

administrative charges.”    Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1514 (10th

Cir.), cert. denied , 118 S. Ct. 626 (1997). Following that premise, we held in

Thomas that “because a [42 U.S.C.] section 1981 claim does not require filing

such charges before a judicial action may be brought, the continuing violation

theory is simply not applicable.”   Id. We need not reach the question of whether

the continuing violation theory is applicable to a § 1983 claim, however, because

the record shows that plaintiff’s time-barred claims are not saved by the theory.

       “The continuing violation doctrine permits a Title VII plaintiff to challenge

incidents that occurred outside the statutory time limitations of Title VII if such

incidents are sufficiently related and thereby constitute a continuing pattern of

discrimination.”   Hunt , 17 F.3d at 1266. The doctrine “is premised on the

equitable notion that the statute of limitations should not begin to run until a

reasonable person would be aware that his or her rights have been violated.”

Martin v. Nannie and the Newborns, Inc.    , 3 F.3d 1410, 1415 n.6 (10th Cir. 1993).

We have held that the following considerations are relevant in determining

whether a continuing violation has occurred: “(i) subject matter -- whether the

violations constitute the same type of discrimination; (ii) frequency; and (iii)

permanence -- whether the nature of the violations should trigger an employee’s

awareness of the need to assert her rights and whether the consequences of the act


                                          -4-
would continue even in the absence of a continuing intent to discriminate.”        Id. at

1415.

        The permanence prong of the . . . test limits the reach of the
        continuing violation theory by restricting its operation to those
        situations underscored by its equitable foundation. That is, if an
        event or series of events should have alerted a reasonable person to
        act to assert his or her rights at the time of the violation, the victim
        cannot later rely on the continuing violation doctrine to overcome the
        statutory requirement of filing a charge with the EEOC with respect
        to that event or series of events.

Id. at 1415 n.6. The continuing violation doctrine is simply inapplicable in this

case: the subject matter of plaintiff’s claimed instances of discrimination varies;

the instances are relatively infrequent; and the nature of the alleged violations

should have triggered plaintiff’s awareness of the need to assert her rights.

        “Alternatively, a continuing violation may be established with evidence of a

pervasive, institutionalized system of discrimination, which typically involves

discrimination through an employer’s policies or practices.”      Purrington v.

University of Utah , 996 F.2d 1025, 1029 (10th Cir. 1993) (quotations and citation

omitted). The record contains no evidence of a company-wide system of

discrimination. Further, the record indicates several remedial responses by the

City to plaintiff’s various complaints. The district court was correct in refusing




                                           -5-
to apply the continuing violation theory to save plaintiff’s claims regarding

incidents that occurred outside the limitations periods.   2




                                         Title VII

       Title VII makes it unlawful for an employer to discriminate against any

individual with respect to her compensation, terms, conditions, or privileges of

employment on account of her gender.        See 42 U.S.C. § 2000e-2(a)(1). Plaintiff

presents her Title VII harassment claim by alleging a hostile work environment.

       For a hostile environment claim to survive a summary judgment
       motion, a plaintiff must show that a rational jury could find that the
       workplace is permeated with discriminatory intimidation, ridicule,
       and insult, that is sufficiently severe or pervasive to alter the
       conditions of the victim’s employment and create an abusive working
       environment. The plaintiff must produce evidence that she was the
       object of harassment because of her gender.

Penry v. Federal Home Loan Bank        , 155 F.3d 1257, 1261 (10th Cir. 1998). We

address the question of whether sexual harassment created a hostile work

environment by reviewing the record as a whole and looking at the totality of the

circumstances, “such as the nature of the sexual advances and the context in



2
       The limitations period for the § 1983 claims is two years.   See Baker v.
Board of Regents , 991 F.2d 628, 630 (10th Cir. 1993). Therefore, we consider
only those § 1983 claims stemming from incidents occurring before April 26,
1993. Under Title VII, plaintiff must have filed her charge within 300 days of the
conduct giving rise to her claim.     See 42 U.S.C. § 2000e-5(e). Plaintiff filed her
EEOC charge on May 20, 1994, and, thus, with regard to plaintiff’s Title VII
claims, we do not consider occurrences before July 24, 1993.

                                             -6-
which the alleged incidents occurred.”     Meritor Sav. Bank, FSB v. Vinson     , 477

U.S. 57, 69 (1986).

       The district court detailed the facts of plaintiff’s alleged instances of

harassment, and we will not repeat them here.      See Houck , 977 F. Supp. at

1135-36. The district court did not specifically examine whether each of the

occurrences were gender-based, but our review of the record indicates that not all

the events detailed by plaintiff were gender-based. Nevertheless, since the

district court made no findings in this regard, we will assume that all the

instances were gender-based. Having reviewed the record, we hold that the

instances of which plaintiff complains were not sufficiently pervasive or severe to

alter the conditions of plaintiff’s employment. We agree with the district court

that a reasonable juror could not find that the conduct supported by the record

created an abusive working environment. The events occurred over a two and

one-half year period, the conduct was not physically threatening, and it did not

unreasonably interfere with plaintiff’s work.     See Harris v. Forklift Sys., Inc. , 510

U.S. 17, 23 (1993) (listing factors relevant to a hostile work environment

determination).   3




3
       Plaintiff places much emphasis on an excerpt from defendant Vernon’s
deposition where Vernon responds affirmatively to a direct question of whether
plaintiff experienced a hostile work environment. The district court specifically
addressed this matter, and we agree that it does not carry the legal significance
                                                                       (continued...)

                                            -7-
                                           § 1983

       Section 1983 prohibits any person, acting under color of state law, from

depriving any other person of any rights, privileges, or immunities secured by the

Constitution and laws of the United States.         See 42 U.S.C. § 1983. “Sexual

harassment can violate the Fourteenth Amendment right to equal protection of the

laws thus triggering a § 1983 cause of action.”        Lankford v. City of Hobart , 73

F.3d 283, 286 (10th Cir. 1996). Plaintiff alleges § 1983 violations against both

Vernon and the City.


1. The City .

       Even if Vernon is liable to plaintiff under § 1983, “[s]imply employing a

tortfeasor is not enough to establish liability under § 1983.”      Id. The City can be

liable to plaintiff only if Vernon’s actions represented an official policy or custom

of the City, or “if the practice is so permanent and well settled as to constitute a


3
 (...continued)
that plaintiff promotes. Whether plaintiff suffered from a hostile work
environment is a legal conclusion, and opposing counsel objected to the statement
as such. The district court was entirely within its province in finding that the
statement was of little evidentiary value in deciding the motions, because the
statement was “broad and conclusory and not helpful to the understanding of
Vernon’s testimony or the material issues in this case.”     Houck , 977 F. Supp. at
1136. The court also noted that there was no indication that Vernon’s use of the
term “hostile work environment” “comports with the definition of ‘hostile work
environment’ relevant to these proceedings.”       Id. Further, it is clear from reading
the entire section of the deposition that Vernon was indicating that plaintiff
perceived she suffered a hostile work environment.

                                              -8-
custom or usage with the force of law.”   Id. “If the plaintiff asserts the alleged

custom or policy comprised a failure to act, he or she must demonstrate the

municipality’s inaction resulted from deliberate indifference to the rights of the

plaintiff.” Jenkins v. Wood , 81 F.3d 988, 994 (10th Cir. 1996) (quotation

omitted).

      Plaintiff does not argue that the City maintained an official policy or

custom of sexual harassment, and the record contains no such evidence. In fact,

the City has a written policy forbidding sexual harassment that was in effect at all

times during plaintiff’s employment. In addition, there is record evidence of

additional sexual harassment training conducted by the City during plaintiff’s

employment. Finally, the written policy against harassment contains procedures

for handling complaints, and there is evidence that the procedures were followed

in instances when plaintiff complained and that the City took steps on several

occasions to remedy situations identified by plaintiff.

      Plaintiff does argue that the practice of harassment was so well settled and

permanent as to constitute a custom or usage of sexual harassment by the City.

We disagree. The record shows that the City took steps to remedy the situations

of which plaintiff complained. Plaintiff’s claim that the City should be held

liable because defendant Vernon did not adequately investigate and address

plaintiff’s complaints of sexual harassment is not supported by the record. The


                                          -9-
record shows that plaintiff’s supervisors did investigate and act on plaintiff’s

complaints. There is no evidence of deliberate indifference.

       To the extent plaintiff alleges a failure to train by the City, that claim must

also fail.

       [I]f the inaction theory rests on an alleged failure to train, the
       plaintiff must prove the need for more or different training is so
       obvious, and the inadequacy so likely to result in the violation of
       constitutional rights, that the policymakers of the city can reasonably
       be said to have been deliberately indifferent to the need for
       additional training.

Id. (quotations omitted). The record contains evidence of sexual harassment

training conducted by city officials. The record does not show deliberate

indifference to the need for additional training.


2. Defendant Vernon .

       Plaintiff also argues that the district court improperly granted summary

judgment on her § 1983 claim against Vernon. Because § 1983 does not

encompass a concept of strict supervisor liability, plaintiff must show that Vernon

either directed the sexual harassment or had actual knowledge of the misconduct

and acquiesced in its continuance.   See id. at 994-95. As previously stated, the

record shows that Vernon investigated plaintiff’s complaints, provided additional

training in response to at least one complaint, and took appropriate action to




                                          -10-
address plaintiff’s complaints. The record does not support plaintiff’s claims of

liability under § 1983.


                                  Anti-Nepotism Policy

      Plaintiff applied to be a police officer with the City. She was not

considered for the job, however, because she was married to a police officer, and

the City has an anti-nepotism policy. Plaintiff claims that the policy is

discriminatory on the basis of sex, both on its face and as applied, in violation of

42 U.S.C. § 2000e-2(a)(1).   4
                                 The policy is completely gender-neutral on its face.

Plaintiff also argues discriminatory impact from the policy as applied. We agree



4
      The policy reads as follows:

      Immediate family relatives will not be hired by the City. If two
      employees become related while they are employed by the City, they
      both may continue to be employed by the City unless they work in
      the same department and one is in a supervisory relationship to the
      other. If the affected employees work in the same department and
      one is in a supervisory relationship to the other, and if a position of
      equal grade and pay is open in another department for which one of
      the affected employees is qualified, that employee will be given the
      opportunity to transfer to the open position. If no transfer position
      becomes available within 90 days from the date the employees
      become related, the affected employees must choose which one of
      them will resign from employment with the City, and if one of the
      employees does not submit a resignation within five working days
      thereafter, the employee with the least amount of service with the
      City will be required to resign.

Appellant’s Br. at 34-35.

                                           -11-
with the district court that there is absolutely no evidence in the record of

discriminatory impact. Plaintiff argues that because women have been

historically discriminated against in the workplace, they have less seniority than

men, and, therefore, the policy is discriminatory. Plaintiff has submitted no

evidence to support her theory. The district court was correct in finding that, on

this record, no reasonable jury could find gender discrimination against plaintiff

based on the anti-nepotism policy.

       We also agree with the district court that plaintiff’s claim that the anti-

nepotism violates K.A.R. 21-32-4, which discourages unequal treatment of

women in employment situations based on marriage, must fail. There is no

provision for a private right of action in the regulation itself,   see Dietz v.

Atchison, Topeka and Santa Fe Railway         , 823 P.2d 810, 814 (Kan. Ct. App. 1991)

(holding that statutes and regulations adopted pursuant to the statutes do not

create a civil liability if the statute does not purport to do so), and plaintiff

abandoned her claims under the Kansas Act Against Discrimination, the statute

that does provide a right of action.


                                         Conclusion

       Plaintiff’s Title VII and § 1983 claims arising from alleged misconduct that

occurred before July 24, 1993, and April 26, 1993, respectively, are time-barred,

and the continuing violation doctrine does not save them. With regard to the

                                              -12-
remaining instances, no reasonable jury could conclude on this record that

plaintiff experienced gender-based harassment so severe and pervasive as to make

her working environment hostile or abusive. Finally, the record does not support

plaintiff’s § 1983 claim of violation of her right to equal protection resulting from

sexual harassment. There is no evidence that defendant Vernon either acquiesced

in the alleged sexual harassment or was deliberately indifferent to plaintiff’s

complaints of discrimination. In addition, the record does not support plaintiff’s

claim that sexual harassment was so permanent and well settled as to constitute a

custom or usage. Neither is there evidence that the City acted with deliberate

indifference regarding plaintiff’s complaints or the need for training.

AFFIRMED.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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