                          United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     __________

                                     No. 99-1866
                                     __________

Reynold D. Klein,                          *
                                           *
              Plaintiff - Appellant,       *
                                           *
        v.                                 *
                                           *
Patrick D. McGowan, in his capacity as * Appeal from the United States
Sheriff of Hennepin County, and in his *       District Court for the District of
individual capacity; Hennepin County, *        Minnesota.
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: October 20, 1999
                                 Filed: December 20, 1999
                                  ___________

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


   1
    The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.

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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

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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

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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.
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 §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 physically threatening or humiliating,

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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 (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. 42 U.S.C. §2000e-5(e).
Conduct which occurred more than 300 days before the date of filing cannot be grounds
for a suit unless it is part of a continuing violation which is systematic or serial.
Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 572-73 (8th Cir. 1997). To avail
himself of this exception, a plaintiff must demonstrate that some incident of harassment
occurred within the 300 day limitations period, Scott v. St. Paul Postal Serv., 720 F.2d
524, 525 (8th Cir. 1983) (per curiam), and that there is a sufficient nexus between that
incident and the other instances of harassment. West v. Philadelphia Elec. Co., 45 F.3d
744, 755 (3d Cir. 1995).

       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 v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th
Cir. 1997). The conduct complained of must have been severe or pervasive enough to
create an objectively hostile or abusive work environment. Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993). If a plaintiff establishes that a supervisor with authority over
him created a hostile work environment, he may be able to hold the employer

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vicariously liable. Faragher v. City of Boca Raton, 524 U.S. 775, ---, 118 S.Ct. 2275,
2292-3 (1998), Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, ---, 118 S.Ct. 2257,
2270 (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 threatened filing of a deficiency slip, Venske's refusal to issue
him business cards, and his observation that Venske and the technicians were standing
"in solidarity".

        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 §1983 plaintiff must demonstrate that the government action complained of
is "truly irrational," that is "something more than ... arbitrary, capricious, or in violation
of state law." Id.

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       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 §1983. In that case the
plaintiff alleged numerous instances of sexual harassment occurring during several
years of employment, but she continued to work without filing a complaint. The
plaintiff did not notify her employer of the harassment, nor did she allege that she had
believed that requesting disciplinary action against her harassers would be ineffective.
The defendants were entitled to summary judgment because the plaintiff had failed to
establish a genuine dispute as to whether a reasonable person would have believed that
there was no reasonable alternative to resignation. A plaintiff must show considerably
more than unpleasant working conditions. Id. at 1402. An employee has a §1983
cause of action only when an employer deliberately makes or allows the employee's
working conditions to become so intolerable that the employee has no other choice but
to quit. Id. at 1401 quoting Irving v. Dubuque Packing Co., 689 F.2d 170, 172 (10th
Cir. 1982) (emphasis in original). A §1983 plaintiff must also take steps short of
resignation that a reasonable person would take to make her working conditions more
tolerable. Id.

       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 §1983, and the incidents about
which he complains, spread out as they are over many years, do not rise to the level of
shocking the conscience. While tasteless and inappropriate comments were made and
other events no doubt upset him, Klein has not shown that Venske or Vodegal engaged
in or were responsible for conduct so arbitrary or capricious as to give rise to a
constitutional tort claim.

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For these reasons, the judgment of the district court is affirmed.

A true copy.

      Attest:

          CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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