                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2041
                                   ___________

Zachary Winspear,                      *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Community Development, Inc.,           *
Charles Schneider, and Lana Sierra,    *
                                       *
            Appellees.                 *
                                  ___________

                             Submitted: November 14, 2008
                                Filed: July 29, 2009
                                 ___________

Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
                         ___________

MELLOY, Circuit Judge.

       Zachary Winspear appeals a district court’s adverse grant of summary judgment
dismissing his employment discrimination claim against Community Development,
Inc. (“CDI”). We reverse and remand for further proceedings.

                                         I.

       “We review a district court’s grant of summary judgment de novo. . . . viewing
the evidence in the light most favorable to the nonmoving party and giving that party
the benefit of all inferences that may reasonably be drawn.” Jackson v. United Parcel
Serv., Inc., 548 F.3d 1137, 1140 (8th Cir. 2008) (internal citation and quotations
omitted).

        Winspear began working at CDI in March 2003. Approximately four years
prior to Winspear’s employment at CDI, Winspear’s brother, Logan, had committed
suicide. Winspear had been close to Logan. He refers to Logan as his best friend and
only “real” family member. His close relationship with Logan was due in part to the
brothers’ difficulties with their strict religious upbringing and their respective
rejections of organized religion. Winspear spent years grieving for his brother and
was nearly incapacitated by his brother’s suicide. Winspear became so distraught that
he contemplated suicide himself.

       When Winspear started with CDI in 2003, he was a personal assistant to
Charles Schneider, a co-owner of CDI. Winspear had a close working relationship
with Schneider, they spent significant time working together, and they often discussed
their personal lives. Winspear even confided in Schneider about Logan’s suicide and
the devastating emotional impact it had on him. While Winspear was at CDI, he
received multiple promotions and ultimately served as CDI’s community manager.

      In January 2005, CDI hired Schneider’s wife, Lana Sierra, as a receptionist.
Winspear and Sierra had known each other through Schneider, and Sierra was aware
of Winspear’s background, his troubled history with religion, and his brother’s
suicide. One morning in late-January 2005, Sierra approached Winspear at work and
asked to speak with him privately. Winspear and Sierra stepped into an empty office
where Sierra hugged Winspear and proceeded to cry. Sierra told Winspear that she
had the ability to speak with the dead and that she had been communicating with
Logan. She told Winspear that Logan wanted her to pass messages to him because
Logan had been trying to contact Winspear, but Winspear had not been listening. She
told Winspear that Logan had said that he was suffering in hell and that Winspear
would also go to hell if he did not “find God.” Winspear became very upset and asked

                                         -2-
Sierra not to speak about his brother. He then returned to his office where he sat and
cried for an extended period of time. Throughout the rest of that day, Sierra
repeatedly spoke to Winspear about her “gift” of speaking to the dead, hugged
Winspear, and told Winspear that she wanted to help him. Winspear told Sierra that
she was crazy, he did not believe her, and she needed to stop. Nevertheless, Sierra
continued to tell Winspear that he needed to “find God” so that he would not go to
hell like Logan.

       Over the next three-and-a-half weeks, Sierra, on a daily basis, repeatedly
hugged Winspear, talked to him about Logan, and asked him if he had looked into
communicating with the supernatural or finding God. Winspear frequently asked
Sierra to stop, but Sierra continued to speak to Winspear about Logan, encourage
Winspear to research the supernatural, and invite him to church. When Winspear
failed to demonstrate sufficient interest, Sierra’s demeanor grew more demanding,
causing Winspear to become increasingly uncomfortable at work. Winspear began
staying in his office during working hours just to avoid Sierra. After work, he would
go home, contemplate suicide, and cry himself to sleep because Sierra’s behavior
caused him to relive the traumatic experience of his brother’s suicide.1




      1
         The dissent makes note of the fact that Winspear stated the conduct continued
for four-to-five months, which contradicted his earlier statement that the harassment
was daily for three-and-a-half weeks. With due respect to the dissent, even if the
harassment did cease entirely after three-and-a-half weeks, three-and-a-half weeks of
daily harassment may be sufficiently pervasive to withstand summary judgment. It
is not only the number of occasions, but the severity of the conduct—playing into
Winspear’s expressed grief over his brother’s suicide—that courts must consider. See
O’Brien v. Dep’t of Agric., 532 F.3d 805, 809 (“Hostile work environment claims are
assessed based on the totality of the circumstances . . . .”); Green v. Franklin Nat’l
Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) (“Frequency of harassment
is a factor, but even infrequent conduct can be severe enough to be actionable.”).

                                         -3-
       After approximately three weeks of Sierra’s behavior, Winspear spoke with
Schneider about Sierra, even though Winspear feared repercussions at work for
complaining about Schneider’s wife. Schneider, however, merely confirmed to
Winspear that Sierra could communicate with the dead, advised Winspear to heed
Sierra’s advice, and told Winspear to keep Sierra’s gift secret.

       Within a few days of Winspear speaking with Schneider, Winspear admits that
Sierra’s direct daily harassment subsided such that she stopped speaking to him about
his brother specifically. Nonetheless, Sierra continued to ask Winspear if he had
given any more thought to what they had talked about. Winspear spoke with
Schneider about Sierra again, but Schneider reiterated that Winspear should listen to
Sierra because she had “a gift.” Schneider’s refusal to remedy the situation left
Winspear crushed.

       By March 2005, Winspear admits that Sierra almost completely stopped her
behavior, but she still continued to ask Winspear about finding religion every one to
two weeks over the next five months. During that time frame, Sierra once told
Winspear that she was frustrated with him because Logan was still trying to contact
him. She also told Winspear that he needed to find God so that Logan would stop
bothering her. These comments humiliated Winspear and caused him to lose any
remaining enjoyment in his job. He became so preoccupied with avoiding Sierra at
work that he came to and left work at odd hours, sought opportunities to leave the
building during working hours, and, while at work, avoided leaving his office to
interact with others or even to use the bathroom. He became temperamental, distant
from other co-workers, and unable to concentrate on his work.

     In August 2005, Sierra and Winspear had a heated confrontation at work over
a comment Winspear made about Sierra’s former boss, a chiropractor with whom
Winspear was having a billing dispute. Winspear left work after the confrontation.



                                         -4-
CDI notified Winspear that he needed to return to work because he did not have
permission for time off. Rather than return, Winspear quit his job.

       After exhausting his administrative remedies, Winspear subsequently sued CDI,
Schneider, and Sierra in federal district court. Among other claims, Winspear alleged
that he was subject to religious-based hostile work environment discrimination, in
violation of federal law. CDI, Schneider, and Sierra moved for summary judgment,
which the district court granted for each of Winspear’s claims. Winspear appeals the
district court’s summary judgment decision dismissing his federal hostile work
environment claim against CDI.

                                          II.

       On appeal, Winspear argues that the district court applied an incorrect standard
when evaluating his federal hostile work environment claim. He contends that the
district court treated his claim as one for constructive discharge and required him to
show elements not essential to establishing that he suffered hostile work environment
discrimination. Applying an appropriate analysis, Winspear claims that there are
genuine issues of material fact as to whether he was subject to hostile work
environment discrimination. CDI argues that Winspear’s claim was for constructive
discharge and that, regardless, summary judgment was appropriate.

       Hostile work environment and constructive discharge claims may be wholly
distinct causes of action under Title VII. See O’Brien, 532 F.3d at 809–11 (analyzing
hostile work environment and constructive discharge claims separately, even where
the claims were based on the same alleged conduct). The claims have different
elements, see Anda v. Wickes Furniture Co., 517 F.3d 526, 531–32, 534 (8th Cir.
2008), and, while a hostile work environment can form the basis for a constructive
discharge allegation, hostile work environment discrimination can exist absent a



                                          -5-
“tangible employment action,” see Pa. State Police v. Suders, 542 U.S. 129, 143
(2004).

       Count One of Winspear’s Complaint against CDI alleges that “Defendant CDI
violated Title VII of the Civil Rights Act of 1991 by creating a hostile work
environment for [Winspear] on the basis of religion and by failing to take prompt
remedial action to correct the hostile work environment.” As a factual basis for this
charge, it incorporates the Complaint’s factual allegations, which relate almost
exclusively to Sierra’s conduct between January and August 2005. The Complaint
itself does not allege constructive discharge—much less contain the words
“constructive discharge”—and the only factual allegation in the Complaint related to
Winspear’s resignation states, “In August 2004 [sic] plaintiff resigned his employment
with CDI.”

       CDI argues, however, that Winspear made a subsequent sworn declaration that
changed his pleadings such that his hostile work environment claim became a claim
for constructive discharge. Specifically, CDI claims that in Winspear’s response to
CDI’s motion for summary judgment, Winspear filed a statement in which he said that
he quit his job “to escape the religious and other harassment by Sierra.” CDI argues
that this statement demonstrates that Winspear truly alleges constructive discharge
based on a hostile work environment. We disagree with CDI’s contention.

      The Federal Rules of Civil Procedure contain specific rules that plaintiffs must
follow to amend their pleadings. See Fed. R. Civ. P. 15. Under these Rules, plaintiffs
have one opportunity before trial to amend their complaints freely within a limited
time period. Id. at 15(a). Thereafter, they must obtain the opposing party’s or the
court’s permission before amending their complaints. Id.

     Here, there is nothing in the record showing that Winspear made any effort to
amend his pleadings pursuant to the Federal Rules of Civil Procedure. There is also

                                         -6-
nothing indicating that CDI consented to such an amendment or that the district court
granted Winspear permission to make such an amendment. Moreover, CDI cites no
authority for the proposition that Winspear’s conduct sufficed to amend his Complaint
outside of the Federal Rules of Civil Procedure.

       Furthermore, even if we indulged CDI’s argument that Winspear did somehow
amend his pleadings, the most we would be able to say from the record is that
Winspear made a constructive discharge allegation in addition to, not in lieu of, his
original hostile work environment claim. Winspear at no point in this matter
abandoned his original hostile work environment claim, and he specifically supported
that claim in his Complaint, in the above-referenced sworn declaration, in his response
to CDI’s motion for summary judgment, and on appeal. Thus, regardless of whether
Winspear at some point raised a constructive discharge claim, his original hostile work
environment claim remained at all times a properly alleged part of this lawsuit, and
we agree that his claim must be analyzed accordingly.

       A review of the district court’s summary judgment order reveals, however, that
the court did not reach a specific finding as to whether Winspear suffered hostile work
environment discrimination. While the court recognized that “Winspear may have
raised a genuine issue of material fact as to whether Sierra’s repeated comments about
Winspear’s brother suffering in Hell and about Winspear needing to find God
constituted a hostile work environment,” Winspear v. Cmty. Dev. Inc., 553 F. Supp.
2d 1105, 1108 (D. Minn. 2008), it resolved Winspear’s claim by stating that “[t]he
four- to five-month lapse in time between when Sierra allegedly stopped harassing
Winspear and when he resigned [was] fatal to his constructive discharge claim,” id.

       Based on our conclusions above, the district court’s analysis of Winspear’s
hostile work environment claim was erroneous because it treated the claim as one for
constructive discharge, requiring elements unnecessary to resolving Winspear’s
hostile work environment claim. Because the district court did not reach a specific

                                          -7-
finding on this issue but indicated that Winspear may have suffered hostile work
environment discrimination, we remand to the district court to address this issue in the
first instance.

                                          III.

     For the foregoing reasons, we reverse the district court’s grant of summary
judgment and remand for further proceedings consistent with this opinion.

BOWMAN, Circuit Judge, concurring.

      I agree that Winspear raised a stand-alone hostile-work-environment claim in
his complaint and that the District Court should have addressed it in ruling on CDI's
motion for summary judgment. I also agree that remand is required for the District
Court to consider the question in the first instance. I write separately to emphasize my
view that the remand is more than a legal formality. I read the District Court's
comment in its order that "Winspear may have raised a genuine issue of material fact"
(emphasis added) on the question of a hostile work environment as acknowledging the
possibility of a legally cognizable claim, not the certainty of one. In fact, I may
ultimately agree with the dissent's legal conclusion in this case. But I believe it is
within the province of the District Court to consider in the first instance, with the
benefit of the full summary judgment record and using the correct legal analysis,
whether Winspear has raised a triable fact question on his hostile-environment claim.

SMITH, Circuit Judge, dissenting.

       I agree with the majority's determination that Winspear asserted a hostile work
environment claim independent of a constructive discharge claim. But I dissent from
its holding that genuine issues of material fact remain as to whether Winspear was
subject to hostile work environment discrimination based on his religious beliefs.

                                          -8-
Viewing the evidence in the light most favorable to Winspear, the alleged harassment
did not affect a term, condition, or privilege of Winspear's employment.

       "Title VII [] prohibits an employer from subjecting its employees to a hostile
work environment because of such individual's race, color, religion, sex, or national
origin." Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1039 (8th Cir. 2005) (internal
quotations and citation omitted).

      To establish a prima facie hostile work environment claim, a plaintiff
      must prove: (1) that [he or] she was a member of a protected group;2 (2)
      the occurrence of unwelcome harassment; (3) a causal nexus between the
      harassment and [his or] her membership in the protected group; (4) that
      the harassment affected a term, condition, or privilege of employment;
      and (5) that the employer knew or should have known of the harassment
      and failed to take prompt and effective remedial action.


      2
        "Title VII has [] been found to encompass situations in which an employee
suffers an adverse employment action because he or she does not conform to the
religious expectations of his or her employer." Sarenpa v. Express Images, Inc., No.
Civ. 04-1538, 2005 WL 3299455, at *3 (D. Minn. 2005) (unpublished) (citing
Campos v. City of Blue Springs, Mo., 289 F.3d 546, 550–51 (8th Cir. 2002)
(upholding jury verdict finding that employee was constructively discharged because
she was not a Christian); Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997)
(recognizing Title VII claim that employee was discharged because she did not
measure up to her supervisor's religious expectations); Shapolia v. Los Alamos Nat'l
Lab., 992 F.2d 1033, 1036 (10th Cir. 1993) ("Title VII has been interpreted to protect
against requirements of religious conformity and as such protects those who refuse to
hold, as well as those who hold, specific religious beliefs."); Backus v. Mena
Newspapers, Inc., 224 F. Supp. 2d 1228 (W.D. Ark. 2002)). In such a "non-
adherence" case, "the 'protected class' showing required in a traditional race or sex
discrimination case does not apply . . . because 'it is the religious beliefs of the
employer, and the fact that [the employee] does not share them, that constitute the
basis of the [religious discrimination] claim.'" Noyes v. Kelley Serv., 488 F.3d 1163,
1168–69 (9th Cir. 2007) (quoting Shapolia, 992 F.2d at 1038) (alterations, in part, in
Noyes).

                                         -9-
Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 550 (8th Cir. 2007).
"[C]onduct must be extreme to amount to a change in the terms and conditions of
employment . . . ." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
"[S]tandards for judging hostility are sufficiently demanding to ensure that Title VII
does not become a general civility code." Id. (internal quotations and citation omitted).

       As noted supra, the fourth element of the prima facie case requires the plaintiff
to prove that the "harassing conduct subjectively and objectively affected a term,
condition, or privilege of employment." Vajdl, 484 F.3d at 551. "Conduct that is not
severe or pervasive enough to create an objectively hostile or abusive work
environment—an environment that a reasonable person would find hostile or
abusive—is beyond Title VII's purview." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). An employer violates Title VII "[w]hen 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." Id. (internal quotations and citation omitted). "We can determine
'whether an environment is 'hostile' or 'abusive' . . . only by looking at all the
circumstances[,which] may include the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance.'" Al-Zubaidy, 406 F.3d at 1038 (quoting Harris, 510 U.S. at 23)
(alterations in Al-Zubaidy).

       Here, Winspear's proof does not establish that the harassment affected a term,
condition, or privilege of employment. First, as to the frequency of the conduct,
Winspear admits that "[a]fter about three[-]and[-]a[-]half weeks of this pretty ongoing
deal, Lana's direct daily harassment somewhat subsided and it became an occasional
have you thought any more about the religion-type of question she would ask me."
Winspear Deposition at 111 (emphasis added). Thus, according to Winspear, the

                                          -10-
conversations between he and Sierra started around January 31, 2005, and continued
on "almost [a] daily basis" for "approximately three[-]and[-]a[-]half weeks." Id. at
112. When asked during his deposition whether Sierra kept talking to him on a daily
basis after that time, Winspear responded, "Like I said. For a few days." Id. at 113.
When asked whether "[i]t went away," Winspear stated, "It went away almost
completely in mid to late March 2005." Id. (emphasis added). Subsequently, when
Winspear was asked whether Sierra would approach him on a "daily basis" and ask
him if he had thought any more about finding a religion and attending church with her,
Winspear responded, "After the middle of March, it happened approximately one to
two weeks." Id. at 136 (emphasis added). Even in his complaint, Winspear stated that
"Sierra's harassment of plaintiff continued, but eventually ceased." Appellant's
Appendix at 27 (emphasis added).

    Not until Winspear filed his declaration in opposition to CDI's motion for
summary judgment did Winspear aver that

      [o]ver the final 4–5 months of my employment at CDI, I experienced
      ongoing pressure from Sierra to choose a religion, to look into finding
      God, fixing my life, and researching the supernatural. Although Sierra's
      direct references to Logan had subsided, her constant pressure on me to
      find religion reminded me of all of the horrible things that Sierra had
      said about Logan, his suffering in Hell, and my inability to contact him
      because I had not found religion. In light of the ongoing harassment[,]
      Schneider's refusal to remedy the situation[,] and in fact condoning
      Sierra's behavior, I lost hope for my job.

(Emphasis added.)

       But a plaintiff "cannot create an issue of material fact merely by contradicting
[his] earlier statements." Planned Parenthood of Minn./S.D. v. Rounds, 372 F.3d 969,
973 (8th Cir. 2004). The district court found, and the record demonstrates, that Sierra's
daily comments about Winspear's need to find God only lasted three-and-a half weeks

                                          -11-
in 2005. Thereafter, the comments were only occasional. Furthermore, in his
complaint, Winspear admitted that Sierra's conduct "eventually ceased." Winspear
waited four to five months between when Sierra allegedly stopped harassing him
before he resigned in August 2005. Cf. Konstantopoulos v. Westvaco Corp., 112 F.3d
710, 715–16 (3d Cir. 1997) (seven-month gap between harassing incidents allowed
effects of prior incidents to dissipate).

       Second, we have rejected hostile work environment claims in circumstances
potentially more offensive than the present case. See, e.g., Duncan v. Gen. Motors
Corp., 300 F.3d 928, 933–34 (8th Cir. 2002) (finding five harassing
incidents—including a relationship proposition, improper touching, a request that
plaintiff draw a sexually objectionable picture, and posting of offensive posters—did
not meet the standard necessary to be actionable); Tuggle v. Mangan, 348 F.3d 714,
722 (8th Cir. 2003) (holding that although the plaintiff "was clearly subjected to
harassing conduct," it was not "actionable conduct" where a coworker made a number
of comments based on the plaintiff's sex and posted a photograph showing the
plaintiff's "clothed rear end"); Ottman v. City of Independence, Mo., 341 F.3d 751, 760
(8th Cir. 2003) (concluding that the district court erred in finding a triable issue for
the jury where the conduct consisted of belittling and sexist remarks on almost a daily
basis); Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003)
(holding sexual harassment claim failed where a coworker grabbed the plaintiff's
buttock and then confronted her about it the next day); Alagna v. Smithville R-II Sch.
Dist., 324 F.3d 975, 977–78, 980 (8th Cir. 2003) (concluding the coworker's conduct
was inappropriate, but not sufficiently severe or pervasive, where it included calls to
the plaintiff's home, frequent visits to her office, discussions about relationships (not
including sexual details) with his wife and other women, touching the plaintiff's arm,
saying he "loved" her and she was "very special," placing romance novels in her
faculty mailbox, and invading her personal space).




                                          -12-
       Third, Winspear does not maintain that Sierra's alleged harassment occurred in
front of others in an attempt to ridicule or demean him. In fact, the record
demonstrates that Sierra always relayed her comments to Winspear in private and not
around other coworkers. Sierra and Schneider even urged Winspear not to tell others
about Sierra's "gift" as a clairvoyant. While understandably offensive, the record
reflects the conduct probably resulted from a misguided attempt to help Winspear
rather than harass him and negatively impact his job status or job performance.

      Finally, as to whether Sierra's harassment unreasonably interfered with
Winspear's work performance, Winspear asserts in his brief that, after Sierra's
"harassment" began

      Winspear dreaded going into the office. He was overloaded with work
      as it was, but he could not concentrate on anything. Winspear would
      leave work at CDI and go right to bed, only to lie there for hours in
      solitude considering suicide and crying himself to sleep.

      When Winspear was at work, he would hide out in his office trying to
      stay professional, but feeling overwhelmed and humiliated. It got to the
      point where he would try to avoid even going to the bathroom or break
      room because he knew that Sierra would inevitably have more comments
      about Logan or religion. Winspear tried to enter and exit the office at
      times when he thought he might not run into Sierra. He felt trapped in
      the office—looking for any excuse to go to an off-site meeting or
      perform a neighborhood inspection. Winspear kept his office door closed
      as much as possible. Whenever someone came to the door, he feared it
      was Sierra. Winspear became distant and short-tempered. He spent the
      entire week counting down the hours to the weekend and then spent the
      weekends dreading returning to work on Monday morning.

Appellant's Brief at 13–14.




                                        -13-
       Winspear alleged that Sierra's harassment affected him at work, but he
acknowledged that he was already "overloaded" at work before the harassment began.
He also made no allegation that he could not complete his work or that he received
discipline for performance deficiencies.

       Reviewing the facts in the light most favorable to Winspear, I conclude that he
has failed to demonstrate conduct so severe or pervasive as to create an objectively
hostile or abusive work environment. Accordingly, I would affirm the judgment of the
district court.
                        ______________________________




                                         -14-
