                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-1963
                                     ___________

Willie Gordon,                                   *
                                                 *
        Plaintiff-Appellant,                     *
                                                 *
        v.                                       * Appeal from the United States
                                                 * District Court for the
Shafer Contracting Co., Inc.,                    * District of Minnesota.
                                                 *
        Defendant-Appellee.                      *
                                                 *
-------------------------------------------------*
                                                 *
Equal Employment Opportunity                     *
Commission,                                      *
                                                 *
        Amicus on Behalf of Appellant. *
                                          ___________

                              Submitted: November 14, 2006
                                 Filed: December 6, 2006
                                  ___________

Before LOKEN, Chief Judge, LAY and MELLOY, Circuit Judges.
                              ___________

LAY, Circuit Judge.
     Willie Gordon appeals the district court’s1 adverse grant of summary judgment.
We affirm.

                                   BACKGROUND

      Willie Gordon is a fifty-two year old African American male. Gordon worked
for Shafer Contracting Co. (“Shafer”), a construction company, during the
construction season from June 1994 to June 2003. Shafer’s employees are unionized
and governed by collective bargaining agreements (“CBA”).

       After Gordon failed to attend a 2003 kick-off meeting for prospective
employees and transferred his union membership to Kentucky, Shafer did not hire
Gordon as a laborer for the 2003 season. Subsequently, Shafer hired Gordon as a
roller operator, a position represented by the 49ers union, to which Gordon did not
belong. Following a confrontation with a 49ers union agent, Gordon stopped working
as a roller operator. Gordon asked Shafer for a laborer position, but was told that none
remained available.

        Gordon subsequently submitted an intake questionnaire to the Equal
Employment Opportunity Commission (“EEOC”) in which he alleged he was the
victim of race- and age-based discrimination at Shafer. He subsequently brought suit
in district court, claiming that the failure to rehire him as a laborer for the 2003 season
constituted age and race discrimination; that he was paid less than similarly-situated
white laborers while at Shafer; and that he was subjected to a hostile work
environment while at Shafer. The district court granted summary judgment in favor
of Shafer on all claims.


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.


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                                      ANALYSIS

       In this timely appeal, Gordon contends that he has raised issues of fact on all
of his claims. Shafer contends that summary judgment was properly granted and that
Gordon’s claims are time-barred. “Summary judgment is appropriate when the
evidence, viewed in a light most favorable to the non-moving party, demonstrates that
there is no genuine issue of material fact, and that the moving party is entitled to
judgment as a matter of law.” Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir.
2000); see Fed. R. Civ. P. 56(c). Reviewing the district court’s grant of summary
judgment de novo, see Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156
(8th Cir. 1999), we affirm.

      I. Statute of Limitations Issues

       We first address Shafer’s contention that Gordon’s Title VII and Age
Discrimination in Employment Act (“ADEA”) claims are time-barred because he did
not file a formal charge with the EEOC within the deadline. Claims of discrimination
must be made in the form of a “charge” with the EEOC within 300 days of the alleged
wrong. 42 U.S.C. § 2000e-5(e)(1). While Gordon’s formal charge was outside the
deadline, he did fill out an EEOC Intake Questionnaire, which he signed under penalty
of perjury, within the deadline. In an amicus brief, the EEOC urges us to accept such
a verified Intake Questionnaire as satisfying the charge requirement.

      As we affirm the dismissal of Gordon’s claims on the merits, we need not
decide this question, for the charge requirement is not jurisdictional. See Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (stating that “filing a timely
charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in
federal court, but a requirement that, like a statute of limitations, is subject to waiver,
estoppel, and equitable tolling”).



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      II. Gordon’s Hostile Work Environment Claims

       A hostile environment exists when “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.” Palesch v. Mo. Comm’n on Human Rights, 233 F.3d 560, 566 (8th Cir.
2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal
quotations and further citation omitted)). Hostile work environments created by
supervisors or coworkers have the following elements in common: (1) the plaintiff
belongs to a protected group; (2) the plaintiff was subject to unwelcome harassment;
(3) a causal nexus exists between the harassment and the plaintiff’s protected group
status; and (4) the harassment affected a term, condition, or privilege of employment.
Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1038 (8th Cir. 2005). In addition, for
claims of harassment by non-supervisory personnel, Gordon must show that his
employer knew or should have known of the harassment and failed to take proper
action. See Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999). To constitute
a hostile work environment, the harassment must be “‘sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment.’” Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 67 (1986)).

       Shafer is vicariously liable for harassment by its supervisory personnel unless
it can establish that (1) Shafer exercised reasonable care to prevent and promptly
correct any harassing behavior; and (2) Gordon unreasonably failed to take advantage
of the preventive or corrective opportunities provided by Shafer. Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 765 (1998). An employer may assert the affirmative
defense only “[w]hen no tangible employment action is taken.” Faragher v. City of
Boca Raton, 524 U.S. 775, 807-08 (1998).




                                           -4-
       Gordon alleges that statements by Boyd Heilig, a coworker, and Gary Heilig,
a supervisor, created a hostile work environment. Gordon contends that Boyd Heilig
made three to four racially offensive comments to him and additional sexually
offensive comments to him. This limited number of offensive comments is
insufficient to create a hostile work environment. See Burkett v. Glickman, 327 F.3d
658, 662 (8th Cir. 2003) (“Offhand comments and isolated incidents of offensive
conduct (unless extremely serious) do not constitute a hostile work environment.”).

       Gordon testified that Gary Heilig greeted him with racially offensive remarks
two or three times a week, as well as making other offensive remarks to him.
Crediting this testimony, as we are required to do on review of a summary judgment,
we assume that these remarks are sufficiently pervasive to constitute a hostile work
environment. Shafer argues that its antidiscrimination policies, and Gordon’s failure
to attempt to use its remedies, establish the Ellerth-Faragher defense with respect to
alleged harassment by Gary Heilig. We agree.

       Shafer publishes an Employee Policy Manual (“Manual”) that describes its
antidiscrimination policies and reporting procedures, including a policy against
harassment. This manual is distributed to all employees at the beginning of each
construction season; Gordon acknowledges receiving the policy before the 2002
season. The Manual identifies three company officials to whom harassment can be
reported and provides their work and home telephone numbers. Gordon never
reported the alleged harassment to any of these officials. He claims he failed to do so
because he believed reporting would be ineffective. Such bare assertions are
insufficient to avoid summary judgment. We affirm the district court’s holding that
Shafer established the Ellerth-Faragher defense with respect to alleged harassment by
Gordon’s supervisor.




                                         -5-
      III. Gordon’s Discriminatory Discharge Claim

       Gordon contends that Shafer’s failure to hire him for the entire 2003 season
constitutes a racially-discriminatory discharge. The McDonnell Douglas burden-
shifting framework governs claims of race discrimination under Title VII and Section
1981. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Griffith v. City
of Des Moines, 387 F.3d 733, 736-37 (8th Cir. 2004) (reaffirming applicability of
McDonnell Douglas to Title VII race discrimination claims); Patterson v. McLean
Credit Union, 491 U.S. 164, 186-87 (1989) (applying McDonnell Douglas framework
to claims under 42 U.S.C. § 1981). Under McDonnell Douglas, Gordon must first
establish a prima facie case of discrimination. The burden of production then shifts to
Shafer to present a legitimate reason for the allegedly discriminatory action.
McDonnell Douglas, 411 U.S. at 802. If Shafer does so, the burden shifts back to
Gordon to establish that the asserted legitimate reason was merely a pretext for a
discriminatory action. Id. at 804.

       A prima facie case of discrimination in a failure-to-hire context requires Gordon
to show that (1) he belongs to a protected class; (2) he applied and was qualified for
a job for which the defendant was seeking applicants; (3) he was rejected; and (4) the
defendant sought applications from others. Chambers v. Wynne Sch. Dist., 909 F.2d
1214, 1216 (8th Cir. 1990).

      Assuming that Gordon has set out a prima facie case, his claim fails because he
has failed to present evidence that Shafer’s reasons for failing to hire him were a
pretext for unlawful discrimination. Gordon did not attend the pre-season meeting
and did not contact Shafer for a laborer position until after those jobs had been filled.
Officials at Shafer were informed that Gordon intended to transfer his union
membership to Kentucky and believed that he did not seek work for 2003. After
working as a roller operator for two weeks, Gordon left following a confrontation with
a 49ers union agent. Gordon’s departure further convinced Shafer that he did not wish

                                          -6-
continued employment with Shafer. As Gordon failed to offer evidence of pretext, we
affirm the grant of summary judgment.

      IV. Gordon’s Age Discrimination Claim

        The McDonnell Douglas framework also governs Gordon’s claim that Shafer’s
failure to hire him for the 2003 season constituted age discrimination. Haas v. Kelly
Servs., Inc., 409 F.3d 1030, 1035 (8th Cir. 2005). A prima facie case of age
discrimination requires Gordon to show that (1) he was at least forty years old; (2) he
suffered an adverse employment action; (3) he was meeting Shafer’s reasonable
expectations at the time of his termination; and (4) he was replaced by someone
substantially younger. Id. As with his race discrimination claim, Gordon fails to offer
evidence that Shafer’s reasons for not offering him a laborers’ position were a pretext
for illegal discrimination. We affirm the grant of summary judgment on this claim.

      V. Gordon’s Wage Discrimination Claim

      Title VII and Section 1981 prohibit wage discrimination based on race. See 42
U.S.C. §§ 2000e-2, 1981. Gordon claims that he was paid less for his work as a gate
guard than white gate guards. Shafer offers undisputed evidence, however, that all the
gate guards received the wage mandated by the CBA. Accordingly, we affirm the
dismissal of this claim.

                                  CONCLUSION

      For the reasons stated above, the judgment of the district court is affirmed.
                       ______________________________




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