The opinion
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2766
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Brigitte Wright, *
*
Plaintiff - Appellee; *
*
v. *
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Rolette County, *
*
Defendant; *
*
Tony E. Sims, Rolette County * Appeal from the United States
Sheriff, in his individual and official * District Court for the District of
capacity, * North Dakota.
*
Defendant - Appellant; *
*
Eldon E. Moors; Joseph S. Baker; *
Kenneth F. Brien; Michael W. *
Laducer; Robert E. Leonard, Rollete *
County Commissioners, in their *
individual and official capacities, *
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Defendants. *
*
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Submitted: February 17, 2005
Filed: August 8, 2005
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Before BYE, HEANEY, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Brigitte Wright (“Wright”) brought this action under section 1983 for sexual
harassment, alleging hostile work environment and constructive discharge against
Sheriff Tony E. Sims (“Sims”). Sims moved for summary judgment based on
qualified immunity. The district court denied qualified immunity, and Sims now
brings this interlocutory appeal. We affirm in part and reverse in part.
I. Facts
The facts, taken in the light most favorable to the plaintiff, are described below.
Wright is a Canadian citizen with permanent resident status in the United States.
From September 2000 to October 2002, she worked in the Rolette County Sheriff’s
Department as an office deputy. During that time, Sims was the Sheriff of Rolette
County. He was an elected official and was Wright’s supervisor.
Use of vulgar, sexist language at the Sheriff’s Office was a daily occurrence.
During her employment, men in the office called Wright a “big-breasted Canadian
secretary,” a “dizzy bitch,” and “Canadian bacon.” Wright was offended and
embarrassed by this name calling. Sims admits to this name calling and admits he did
it in front of others. On one occasion, Sims referred to Wright as “Canadian bacon”
at a Peace Officer’s Association meeting, and all in attendance heard the comment.
Sims also repeatedly made comments about a “potty cam” when Wright returned from
the restroom. These comments embarrassed Wright to the point that she began using
the restroom intended for female inmates. In another incident, Sims told Wright he
could use a “blow job” after hearing her explain that some police training she had
received allowed her to knock somebody out with one blow.
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Sims made other comments to Wright about “rubbing [her] tits with toilet
paper” and referred to her vagina as a “snapper.” Sims also stroked his mustache
while telling Wright he was “clearing off her seat.” Sims admits to making this
comment to other women in the office several times. Sims also made comments to
Wright about lesbian activity. Without belaboring the point, Sims made numerous
other unwelcome comments of a sexual nature that would be offensive to any
reasonable person. Sims admits to making most of these comments. Wright claims
she protested such activity, but her objections were ignored.
In December 2001, Wright passed Correctional Officer Basic training. Wright
attended training at the police academy and learned that sexual harassment included
unwanted comments that were sexual in nature. Wright did not report the offensive
statements immediately after her training for fear of retaliation.
In January 2002, Wright discussed the situation with Rolette County
Commissioner Eldon Moors, who told her there was nothing he could do about it. In
March 2002, Wright reported the situation to Rolette County States Attorney Mary
O’Donnell. Wright alleges that the county did nothing to remedy the situation.
On March 29, 2002, Dr. Mallory Leon examined Wright and diagnosed her
with high blood pressure, anxiety, and depression. Her physician prescribed Celexa,
for depression, Xanax for anxiety and panic attacks, and Lotensin for high blood
pressure.
On April 1, 2002, Wright gave notice to Rolette County alleging that Sims’
behavior created a hostile work environment. Rolette County hired Attorney Pat
Morley to investigate the claim. Wright was placed on paid leave during the
investigation. The investigation was completed on or about June 27, 2002. Morley
concluded that the comments, though inappropriate, were not unwelcome. Wright’s
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administrative leave was terminated, and Wright returned to work on July 29, 2002.
On October 25, 2002, Wright quit her job, claiming constructive discharge.
II. Procedure
On or about April 24, 2002, Wright filed a verified charge of discrimination
with the North Dakota Department of Labor and the United States Equal Employment
Opportunity Commission. On November 19, 2002 the North Dakota Department of
Labor notified Wright of the termination of further proceedings on her charge of
employment discrimination and that she had the right to bring a lawsuit within 272
days of the closure. On February 18, 2003, Wright commenced this § 1983 action
against Sims, claiming sexual harassment in the form of a hostile work environment
and constructive discharge. Sims moved for summary judgment based on qualified
immunity, and the district court denied the motion. Sims now brings this immediate
appeal on the issue of qualified immunity.
III. Discussion
A. Appellate Jurisdiction
While a denial of summary judgment is not generally reviewable on immediate
appeal, we may review a denial of summary judgment based on qualified immunity
on immediate appeal “to the extent that it turns on an issue of law.” Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). “Beyond this narrow issue, we may exercise
jurisdiction only over issues that are inextricably intertwined, meaning issues that
would necessarily be resolved when we resolve the question of qualified immunity.”
Schilcher v. Univ. of Arkansas, 387 F.3d 959, 962 (8th Cir. 2004) (internal quotations
and citation omitted).
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B. Standard of Review
We review “de novo the denial of a motion for summary judgment based on
qualified immunity.” Vaughn v. Ruoff, 253 F.3d 1124, 1127 (8th Cir. 2001). “At the
summary judgment stage, we must view the facts in the light most favorable to . . . the
nonmoving party below . . . and ‘take as true those facts asserted by [the nonmoving
party] that are properly supported in the record.” Wilson v. Lawrence County, 260
F.3d 946, 951 (8th Cir. 2001) (quoting Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.
2001)). “‘[I]f there is a genuine dispute concerning predicate facts material to the
qualified immunity issue, there can be no summary judgment.’” Gregoire v. Class,
236 F.3d 413, 417 (8th Cir. 2000) (quoting Lambert v. City of Dumas, 187 F.3d 931,
935 (8th Cir. 1999)).
C. Qualified Immunity
“Government officials who perform discretionary functions are entitled to
qualified immunity unless their alleged conduct violated clearly established federal
constitutional or statutory rights of which a reasonable person in their positions would
have known.” Ottman v. City of Independence, Missouri, 341 F.3d 751, 756 (8th Cir.
2003). We analyze qualified immunity issue in two steps. First, we ask whether the
facts as asserted by the plaintiff “show the officer’s conduct violated a constitutional
right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the answer is no, we grant
qualified immunity. If the answer is yes, we go on to determine “whether the right
was clearly established.” Id. “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Id. at 202.
D. Hostile Work Environment
1. Was there a violation of a constitutional right?
“Sexual harassment by state actors violate[s] the Fourteenth Amendment and
establishes a section 1983 action.” Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir.
2003); see also Ottman, 341 F.3d at 756 (“We have held intentional gender
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discrimination in public employment by persons acting under color of state law
violates the Equal Protection Clause of the Fourteenth Amendment and is actionable
under section 1983.”).
Sims argues that the plaintiff must meet a higher standard to prove sexual
harassment under section 1983 than is required under Title VII. We find this to be
an erroneous statement of law. Sexual harassment claims under section 1983 are
analyzed under the same standards developed in Title VII litigation and the elements
of a prima facie case are the same regardless of which statute the plaintiff uses to seek
relief. See Moring v. Ark. Dep’t of Corr., 243 F.3d 452, 455 (8th Cir. 2001); see also
Genosky v. Minnesota, 244 F.3d 989, 993 (8th Cir. 2001) (analyzing Title VII and
section 1983 gender discrimination claims without using a different standard);
Headley v. Bacon, 828 F.2d 1272 (8th Cir. 1987) (holding cause of action under Title
VII and section 1983 identical for purposes of res judicata); Cross v. Alabama, 49
F.3d 1490, 1508 (11th Cir. 1995) (elements of sex discrimination causes of action are
the same under section 1983 and Title VII); Beardsley v. Webb, 30 F.3d 524, 529 (4th
Cir. 1994) (“Courts may apply the standards developed in Title VII litigation to
similar litigation under § 1983.”); Hardin v. Stynchcomb, 691 F.2d 1364, 1369 n.16
(11th Cir. 1982) (holding cause of action under Title VII and section 1983 the same);
but see Annis v. County of Westchester, New York, 36 F.3d 251, 254 (2d Cir. 1994)
(“While we do not subscribe to a categorical view that sexual harassment equals sex
discrimination, we do agree that harassment that transcends coarse, hostile and
boorish behavior can rise to the level of a constitutional tort.”).
Sims further contends that his behavior cannot constitute sexual harassment
because there is no allegation that he touched Wright or made sexual advances toward
her. Our case law does not support this contention. Burns v. McGregor Elec. Indus.,
Inc., 989 F2d 959, 964 (8th Cir. 1993) (sexual harassment “can obviously result from
conduct other than sexual advances” and the employee need not be “touched
offensively”) (citation omitted); see Smith v. St. Louis Univ., 109 F.3d 1261, 1267
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(8th Cir. 1997) (summary judgment for employer reversed when plaintiff pled
harasser made sexist comments on marriage, pregnancy, and plaintiff’s appearance,
and called her a “babe”, but alleged no physical conduct nor sexual advances).
Further, 29 C.F.R. § 1604.11 states, “Unwelcome sexual advances, requests for sexual
favors and other verbal or physical conduct of a sexual nature constitute sexual
harassment when . . . such conduct has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an intimidating, hostile,
or offensive working environment.” Thus, verbal harassment of a sexual nature
which creates an offensive working environment fits the regulation’s definition of
sexual harassment.
To make out a prima facie case of sexual harassment under section 1983,
Wright must prove:
(1) that she was a member of a protected group,
(2) the occurrence of unwelcome harassment,
(3) a causal nexus between the harassment and 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.
Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004). To determine
whether the harassment affected a term, condition, or privilege of employment, we
consider “the frequency of the behavior, its severity, whether physical threats are
involved, and whether the behavior interferes with plaintiff’s performance on the
job.” Henthorn v. Capitol Communications, Inc., 359 F.3d 1021, 1026 (8th Cir.
2004). “Simple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of
employment.” Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1158 (internal
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citations omitted). In order to affect the term, condition, or privilege of employment,
the harassment must be sufficiently severe or pervasive to create an objectively
hostile work environment, and in addition, must be subjectively perceived by the
plaintiff as abusive. Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1047 (8th Cir.
2005).
We find that the facts as alleged show the violation of Wright’s constitutional
rights under the Equal Protection Clause. Wright is a member of a protected group
and alleges that Sims, her supervisor, harassed her in a highly sexualized way. He
targeted Wright and made extremely vulgar, sexual comments about her, sometimes
in front of her colleagues. Wright alleges that the harassment, which took place over
a two-year period, offended and embarrassed her. “Neither ‘simple teasing’ and
‘offhand comments,’ nor ‘sporadic use of abusive language, gender-related jokes, and
occasional teasing’ amount to discriminatory changes in the terms and conditions of
employment or actionable harassment.” Peterson v. Scott County, 2005 WL
1048103, at *9 (8th Cir. May 6, 2005). However, Sims’ behavior was more serious
than simple teasing, and it was not sporadic nor isolated. The effect of the harassment
was so serious that Wright ultimately sought medical treatment for depression, high
blood pressure, and anxiety caused by the harassment. Wright also alleges that she
complained to Sims and to the county and that nothing was done to stop the behavior.
These facts, if proven to be true, support a claim for sexual harassment.
2. Was the right clearly established?
“The right to be free of gender discrimination is clearly established.” Peterson,
2005 WL 1048103 at *10. Sims does not dispute that the right to be free of sexual
harassment was not clearly established at the time of his actions. Rather, he contends
there can be no sexual harassment under section 1983 unless there is physical
touching or a request for sexual favors, and therefore the right to be free of behavior
such as his was not clearly established. As stated above, we believe this is an
erroneous view of the law. Taking the facts in the light most favorable to Wright,
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Sims’ behavior constituted gender discrimination. A reasonable officer would have
known that it was illegal to subject Wright to such treatment in the workplace.
Therefore, Sims is not entitled to qualified immunity or summary judgment on the
hostile work environment claim.
E. Constructive Discharge
1. Was there a violation of a constitutional right?
Wright also claimed that the harassment caused her to be constructively
discharged. “Constructive discharge occurs when an employer deliberately renders
the employee’s working conditions intolerable, thereby forcing her to quit.” Baker
v. John Morrell & Co., 382 F.3d 816, 829 (8th Cir. 2004). To prove a case of
constructive discharge, a plaintiff must show: (1) “that a reasonable person in her
situation would find the working conditions intolerable” and (2) that “the employer
. . . intended to force the employee to quit.” Gartman v. Gencorp Inc., 120 F.3d 127,
130 (8th Cir. 1997). If the plaintiff cannot show the employer consciously intended
her to quit, she can still prevail on a constructive discharge claim if “‘the employer
. . . could have reasonably foreseen that the employee would [quit] as a result of its
actions.’” Fenney v. Dakota, Minnesota & Eastern R.R. Co., 327 F.3d 707, 717 (8th
Cir. 2003) (quoting Kerns v. Capitol Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir.
1999)).
In this case, Wright has failed to meet this standard, and therefore Sims is
entitled to qualified immunity on the constructive discharge claim. While Sims’
behavior was serious and reprehensible, Wright has not shown that her work
conditions would be intolerable to a reasonable person. In contrast, it appears that the
harassment all but stopped after Wright’s return to work following her leave period.
Wright was back at work from July 2002 until she resigned in October 2002. Wright
admitted that Sims’ behavior during this period was improved. In fact, there were no
incidents of harassing behavior during July, August, or September. Wright stated that
the harassment began again in October, but even then, the environment was “not like
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it was before,” referring to more serious harassment in the past. This evidence shows
that the work environment was not so intolerable so as to force Wright to quit.
Therefore, Wright has failed to show that the facts as alleged in regard to the
constructive discharge claim show a violation of a constitutional right. Sims is
entitled to qualified immunity and summary judgment on this claim.
IV. Conclusion
We find that Sims is entitled to qualified immunity on the constructive
discharge claim, but not entitled to qualified immunity on the hostile work
environment claim. We remand to the district court for proceedings consistent with
this opinion.
BYE, Circuit Judge, concurring.
I concur with the majority as to the facts as alleged by Ms. Wright, if proven
true, could support a claim for sexual harassment, but not a claim for constructive
discharge. I write separately in regards to section III.D.2 of the opinion, which
discusses the clearly established prong of the qualified immunity inquiry. The
majority declares “[t]he right to be free of gender discrimination is clearly
established.” This hasty resolution of the clearly established prong ignores the
Supreme Court’s pronouncements in Anderson v. Creighton, 483 U.S. 635, 640
(1987) and Saucier v. Katz, 533 U.S. 194, 201 (2001). It is now well-settled the
clearly established analysis “must be undertaken in light of the specific context of the
case, not as a broad general proposition.” Tuggle v. Mangan, 348 F.3d 714, 720 (8th
Cir. 2003) (quoting Saucier, 533 U.S. at 201). Although we do not require a precise
factual analog to precedent, in light of pre-existing law the unlawfulness of specific
conduct must be apparent to a reasonably competent official. Anderson, 483 U.S. at
640; Saucier, 533 U.S. at 202. The importance of this particularized inquiry cannot
be discounted because it is the teeth of the qualified immunity defense. Without these
teeth, the defense lacks the bite essential in promoting the compelling public policy
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objectives underlying it. See Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)
(discussing the societal costs associated with litigation against public officials).
In other words, because of the societal costs associated with litigation against
public officials, id., we hold our officials individually liable only for transgressing
bright constitutional lines. Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005)
(citing Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004)). Interestingly, in the hostile
work environment context we have stated, “[t]here is no bright line between sexual
harassment and merely unpleasant conduct . . . .” Henthorn v. Capitol
Communications, Inc., 359 F.3d 1021, 1026 (8th Cir. 2004) (quoting Hathaway v.
Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997)). This statement, though telling of the
difficulty we face in analyzing hostile work environment cases, must not be taken
literally because our case law clearly establishes at least two lines bright enough for
officials such as Sheriff Sims to take notice.
Our case law, for instance, suggests a person engaged in repetitive offensive
touching in combination with pervasive sexual innuendo has clearly crossed the line.
Henthorn, 359 F.3d at 1027 n.3 (“[W]e have found to be actionable conduct that
involved pervasive sexual innuendo and repetitive offensive touching.”); Baker v.
John Morrell & Co., 382 F.3d 816, 828 (8th Cir. 2004) (same); Eich v. Bd. of
Regents, 350 F.3d 752, 755-56 (8th Cir. 2003) (en banc) (finding conduct sufficiently
severe where the victim was frequently touched in numerous suggestive ways and
subjected to simulated sex acts); Beard v. Flying J., Inc., 266 F.3d 792, 797 (8th Cir.
2001) (affirming judgment for plaintiff where another employee frequently brushed,
rubbed and flicked plaintiff’s breasts and pointed to his crotch); Henderson v.
Simmons Foods, Inc., 217 F.3d 612, 616-17 (8th Cir. 2000) (upholding a jury verdict
where plaintiff was subjected to physical touching, obscene hand gestures, and a
verbal barrage of crude sexual vulgarities); Bailey v. Runyon, 167 F.3d 466, 469 (8th
Cir. 1999) (upholding a jury verdict where male co-worker grabbed plaintiff’s crotch
and requested opportunity to perform oral sex on plaintiff three or four times a week);
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Howard v. Burns Bros. Inc, 149 F.3d 835, 840 (8th Cir. 1998) (upholding a jury
verdict where the victim was subjected to chronic sexual innuendo and unwanted
physical contact); Hathaway,132 F.3d at 1217-18 (upholding a jury verdict where the
plaintiff was subject to offensive physical contact and constant snickering and
guttural noises from her co-workers); Hall v. Gus Const. Co., 842 F.2d 1010, 1012-14
(8th Cir. 1988) (finding unwanted physical contact, repeated requests to engage in
sexual acts and continuous verbal abuse sufficiently severe or pervasive as a matter
of law). Thus, based upon our case law, it would be apparent to a reasonable official
by engaging in repetitive offensive touching along with pervasive sexual innuendo
does cross the boundary between merely offensive conduct and actionable sexual
harassment.
Ms. Wright complains of no repetitive offensive touching, but, as the majority
points out, the boundary is not drawn at repetitive offensive touching. A harasser
may cross the line without frequently physically assaulting the victim. See Burns v.
McGregor Elec. Indus., Inc., 989 F.2d 959, 964 (8th Cir. 1993) (“Sexual harassment
can take place in many different ways.”). The line between merely offensive conduct
and sexual harassment may be crossed, even without physical contact, where a person
engages in pervasive sexual innuendo. See Breeding v. Arthur J. Gallagher & Co.,
164 F.3d 1151, 1159 (8th Cir. 1994) (finding a situation where an employee’s
supervisor continuously fondled his genitals in front of her and used lewd and
sexually inappropriate language to be sufficient as a matter of law to constitute sexual
harassment). Our case law clearly establishes sexual innuendo or discriminatory
conduct is pervasive or abusive when it is both frequent and severe. See id.; see also
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (listing the circumstances to be
considered in determining whether an environment is hostile or abusive, including:
the frequency and severity of the discriminatory conduct; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance).
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That is not to say our case law is a model of clarity in the absence of frequent
and severe discriminatory conduct. In fact, the line between merely offensive conduct
and actionable sexual harassment is blurred where the harassment, though severe,
occurs relatively infrequently,1 or where the complained of conduct, though frequent,
is relatively innocuous.2 But the conduct at issue here is neither infrequent nor
innocuous. Thus, if Ms. Wright’s allegations turn out to be true, Sheriff Sims’s
conduct falls within the realm of frequent and severe sexual innuendo and outside the
protection of the qualified immunity defense.
HEANEY, Circuit Judge, dissenting.
I would affirm the district court on both the hostile work environment and
constructive discharge counts. Thus, I respectfully dissent from the majority’s
opinion insofar as it holds that Rolette County Sheriff Tony Sims is entitled to
qualified immunity on Brigitte Wright’s claim of constructive discharge.
A plaintiff claiming constructive discharge based on a hostile work
environment must make two showings: first, she must show the presence of harassing
behavior so pervasive or severe that it altered the plaintiff’s working conditions. Pa.
1
See LeGrand v. Area Res. for Cmty. & Human Servs., 394 F.3d 1098, 1100-03
(8th Cir. 2005) (finding severe, but infrequent conduct insufficient as a matter of law
to support a claim for hostile work environment); Duncan v. GMC, 300 F.3d 928,
931-34 (8th Cir. 2002) (en banc) (same).
2
Compare Ottman v. City of Independence, 341 F.3d 751, 760 (8th Cir. 2003)
(frequent, but relatively innocuous conduct not enough); Henthorn, 359 F.3d at 1028
(same); Tuggle, 348 F.3d at 714, 721-22 (same); Alagna v. Smithville R-II Sch. Dist.,
324 F.3d, 975, 977-78, 980 (8th Cir. 2003) (same); Scusa v. Nestle U.S.A. Co., Inc.,
181 F.3d 958, 961, 967 (8th Cir. 2003) (same); with Bales v. Wal-Mart Stores, Inc.,
143 F.3d 1103, 1106-09 (8th Cir. 1998) (frequent, relatively innocuous conduct
sufficient); Williams v. City of Kansas City, 223 F.3d 749, 753 (8th Cir. 2000)
(same); Smith v. St. Louis Univ., 109 F.3d 1261, 1264-65 (8th Cir. 1997) (same).
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State Police v. Suders, 124 S. Ct. 2342, 2347 (2004). Second, she must demonstrate
that “the abusive working environment became so intolerable that her resignation
qualified as a fitting response.” Id.; see also id. at 2351 (“The inquiry is objective:
Did working conditions become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign?”). The district court found
both prongs were met, and I agree.
Wright was constructively discharged from her position due to the extreme,
harassment-based humiliation she was forced to endure. Sims directed an office in
which sexually explicit and offensive conduct was the order of the day. Wright was
the sole female employee of that office, and thus regularly found herself as the target
of Sims’ lewd behavior and comments. Sims apparently found his own behavior
entirely acceptable; prior to Wright’s first formal complaint on April 1, 2002, Sims
was of the belief that sexual harassment included physical touching and unwanted
advances,3 but not verbal abuse of a sexual nature. Sims had no formal training on
sexual harassment, yet the County policy (which Sims had apparently ignored) clearly
prohibited “[a]ction, words, jokes or comments based on an individual’s sex,” as well
as “[v]erbal abuse of a sexual nature.” (J.A. at 151.)
The context of Wright’s workplace is relevant not only to her hostile work
environment claim, but also to her claim of constructive discharge. The majority
finds that the environment was not so pervasively hostile that Wright was forced to
quit, because the harassment “all but stopped” once she returned from work following
investigation of her complaint. Ante at 9. While Sims’ behavior was slightly better
for a time, this does not tell the entire story. Wright returned to work in late July of
3
Even under Sims’ own definition of harassment, some of Sims’ comments
would certainly meet his standard. They included: stating he could not pay attention
while Wright was talking because he was staring at her breasts, vocalizing his desire
for oral sex when Wright recounted a police training program she had completed, and
suggesting that he would like to perform oral sex on Wright.
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2002 after the County concluded that there was no wrongdoing on the part of Sims.
This forced Wright to return to an environment that this court has found to be hostile,
with no prospect of improvement in Sims’ behavior.
In the factually similar case of Henderson v. Simmons Foods, Inc., 217 F.3d
612 (8th Cir. 2000), our court rejected this same argument. In Henderson, the
plaintiff was subjected to a hostile work environment stemming from coworkers’
targeted sexual vulgarities and harassment. After the plaintiff complained to her
supervisor, the offending coworkers discontinued their verbal harassment. One
coworker, however, directed offensive hand gestures at the plaintiff. When the
plaintiff complained, her supervisor did nothing further. Eventually, the plaintiff
resigned and successfully claimed she was constructively discharged. On appeal, the
defendant argued that the verdict on constructive discharge could not stand because
the plaintiff’s conditions improved after her complaints. We disagreed:
Simmons’s half-hearted responses to Henderson’s complaints,
Simmons’s threat against Henderson’s job, Simmons’s poorly conducted
investigation, Simmons’s failure to transfer either Henderson or Sanchez
[the offending employee], and Simmons’s failure to respond to
Sanchez’s lewd gestures toward Henderson certainly demonstrates the
existence of an intolerable working environment where an employee
essentially is left with no choice other than the termination of her
employment.
Id. at 617.
There is nothing of note to distinguish this case from Henderson. When Wright
reported Sims’ misconduct to Rolette County State’s Attorney Mary O’Donnell,
O’Donnell met the complaint with skepticism and disbelief. When Wright
complained to Rolette County Commissioner Eldon Moors about Sims, Moors told
her he was sorry, but that “All [the County] can do is control his budget,” and “that’s
the way it is.” (Wright Dep. at 127.) Finally, when the County investigated the
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matter, it used an investigator whose deposition reveals he had no understanding of
even basic sexual harassment law. When the investigator’s report concluded that
Sims engaged in no wrongdoing with respect to Wright, she was forced to return to
the same office, with the same supervisor, without even an acknowledgment that she
indeed had been experiencing unlawful sexual harassment.
We would have a different case if the investigation had found that Sims’
conduct toward Wright was objectionable, or if Sims or the County assured Wright
that the environment would improve upon her return. That is not the case, however.
As the majority notes, the atmosphere was better for Wright when she returned, but
not for long. After a relatively short respite, Sims returned to his pre-complaint ways,
making sexually explicit comments and using offensive terms in Wright’s presence.
As I read the majority opinion, it would require Wright to again complain when Sims
engaged in inappropriate behavior upon her return, or to wait until Sims’ conduct
escalated to his past benchmarks for impropriety. I would not impose this demand.
The investigation conducted at the behest of the County found no violation of the
County’s sexual harassment policy, and forced Wright to return to an environment
that the district court and this court have found objectively hostile.4 Even though an
employee must generally give the employer an opportunity to correct the problem
before resigning, Campos v. City of Blue Springs, Mo., 289 F.3d 546, 550-51 (8th
Cir. 2002), where “an employee quits because she reasonably believes there is no
chance for fair treatment, there has been a constructive discharge.” Ogden v. Wax
Works, Inc., 214 F.3d 999, 1008 (8th Cir. 2000); accord Delph v. Dr. Pepper Bottling
Co., 130 F.3d 349, 356 & n.5 (8th Cir. 1997) (excusing a plaintiff’s failure to
4
Inexplicably, the report also discounted Wright’s complaints about Sims’
conduct because “[t]here is no evidence other than that of Ms. Wright that there was
ever any complaint made to Sheriff Sims about the teasing, language, or crude jokes.”
(J.A. at 159.) I am aware of no requirement in the law that a victim of sexual
harassment must have their complaints witnessed or joined by others before they are
considered legitimate.
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complain to supervisors about his hostile work environment where they created and
condoned the objectionable atmosphere). Whether Sims’ conduct, and
correspondingly, the atmosphere for Wright, had improved to the point that her
constructive discharge claim fails is clearly a question of fact. Thus, I would affirm
the district court’s denial of summary judgment on this matter.
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