                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3329
                                    ___________

Scott A. Linville,                        *
                                          *
             Appellant,                   *
                                          *
      v.                                  *   Appeal from the United States
                                          *   District Court for the
Sears, Roebuck and Company, a             *   District of Minnesota.
Foreign Corporation of New York;          *      [PUBLISHED]
                                          *
             Appellee.                    *

                                    ___________

                          Submitted: June 6, 2003
                              Filed: June 30, 2003
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.
                         ___________

PER CURIAM.

       We recite the facts in the light most favorable to the appellant. Reimer v. City
of Crookston, 326 F.3d 957, 959 (8th Cir. 2003). In February and March 2001, Scott
Linville, a tool salesman at Sears, Roebuck and Company (Sears), was backhanded
in the scrotum by coworker Kent Farnham, causing pain and injury. Despite
Linville’s telling him to stop, Farnham continued to strike Linville in the scrotum on
two or three other occasions, laughing each time. Linville complained to his
supervisor and Sears’ Human Resources Department. Sears conducted an
investigation which did not result in Linville’s discharge, and Farnham resigned.
Linville brought claims of gender discrimination and harassment under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), and the Minnesota
Human Rights Act (MHRA), Minn. Stat. Ann. § 363.03 (West 2003). The district
court1 determined that Linville could not establish a claim of gender discrimination
under Title VII or the MHRA because he did not raise an issue of fact that the
harassment was based on sex. Linville appeals.

       We review a grant of summary judgment de novo. See Kopp v. Samaritan
Health Sys., Inc., 13 F.3d 264, 268-69 (8th Cir. 1993). Discrimination based on sex
that creates a hostile or abusive working environment violates Title VII. See Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To state a claim for sex
discrimination based on a hostile working environment, Linville was required to show
(1) he belongs to a protected group; (2) he was subject to unwelcome sexual
harassment; (3) the harassment was based on sex; (4) the harassment affected a term,
condition, or privilege of employment; and (5) the employer knew or should have
known of the harassment and failed to take proper remedial action. See Quick v.
Donaldson Co., 90 F.3d 1372, 1377 (8th Cir. 1996).

       We conclude the evidence did not support a claim of gender discrimination
based on a hostile work environment because Linville failed to provide evidence that
the harassment was “based on sex.” See Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 79-80 (1998) (Title VII does not prohibit all verbal or physical
harassment in workplace; plaintiff must show conduct was not merely tinged with
offensive sexual connotations, but actually constituted “discrimination because of
sex”). Linville offered no evidence of Farnham’s motivation, much less that Farnham
was motivated by a hostility toward men. See Davis v. Coastal Int’l Sec., Inc., 275
F.3d 1119, 1123 (D.C. Cir. 2002) (affirming summary judgment for employer on


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

                                         -2-
same-sex hostile-work-environment claim where, among other things, plaintiff
admitted he did not know coworkers’ motivation for their conduct); EEOC v.
Harbert-Yeargin, Inc., 266 F.3d 498, 501, 522 (6th Cir. 2001) (rejecting same-sex
hostile-work-environment claim where plaintiff had been grabbed or patted in
genitals or buttocks on at least two occasions, concluding conduct was “gross, vulgar,
male horseplay in a male workplace”; no proof that alleged harasser was motivated
by general hostility to presence of men in workplace). While Farnham’s striking
Linville in the scrotum and laughing was probative of crude, gender-specific
vulgarity, it was not, by itself, probative of gender discrimination. See Oncale, 523
U.S. at 81 (Title VII is not “general civility code”); Kriss v. Sprint Communications
Co., 58 F.3d 1276, 1281 (8th Cir. 1995) (where supervisor used term “bitch” to
describe plaintiff employee, court determined term when directed toward only one
woman, rather than women in general, was not indicative of general misogynist
attitude and thus not probative of gender discrimination).

      We conclude Linville’s sexual harassment claim under the MHRA failed as
well. See Minn. Stat. Ann. § 363.01(41) (West 2003) (“‘[s]exual harassment’
includes unwelcome sexual advances, requests for sexual favors, sexually motivated
physical contact or other verbal or physical conduct or communication of a sexual
nature when . . . (3) that conduct or communication has the purpose or effect of
substantially interfering with an individual’s employment”); Cummings v. Koehnen,
568 N.W.2d 418, 422 (Minn. 1997) (“sexual harassment is ‘discrimination based on
sex’”). Accordingly, we affirm.




                                         -3-
A true copy.

      Attest:

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




                              -4-
