Donna E. Dains v. University of MO , 29 F. App'x 425 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-3032
___________
Donna E. Dains, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
The Curators of the University of *
Missouri, * [UNPUBLISHED]
*
Defendant - Appellee. *
___________
Submitted: January 17, 2002
Filed: February 28, 2002
___________
Before LOKEN, HEANEY, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Donna E. Dains appeals the dismissal of her sexual harassment claim against
her former employer, the University of Missouri - St. Louis. Dains was employed as
a radio dispatcher by the University’s police department from December 1983 until
November 13, 1998, when her dispatcher position was eliminated and her
accumulated leave expired. Dains filed a charge of discrimination with the Equal
Employment Opportunity Commission on August 16, 1999, and filed this lawsuit on
February 22, 2000. In response to the University’s motion for summary judgment,
Dains submitted an affidavit summarizing sporadic acts of alleged abuse and
harassment by various male University police officers over a ten-year period. The
district court1 nonetheless granted the University’s motion on the ground that the
sexual harassment claim was untimely because no unlawful act took place within 300
days before Dains filed her EEOC charge.
On appeal, Dains argues her sexual harassment claim is timely because she was
the victim of a continuing sexual harassment violation. In this circuit, proof of a
continuing violation does not expand the period for which plaintiff may recover
damages, but evidence of harassment occurring prior to the statute of limitations
period may be admissible to prove that conduct within that period is actionable
because it was part of an unlawful continuing violation. See Kimzey v. Wal-Mart
Stores, Inc., 107 F.3d 568, 572-73 (8th Cir. 1997); Gipson v. KAS Snacktime Co., 83
F.3d 225, 229-30 (8th Cir. 1996). Thus, the district court properly focused on
whether Dains presented sufficient evidence that a pattern of related acts of sexual
harassment continued into the limitations period, which began on October 21, 1998,
300 days before she filed her EEOC charge.
Dains argues there were two acts of harassment during the limitations period.
First, in late November 1998, weeks after her termination, she was invited by the
police department to apply for two available security officer positions. Dains
contends this was a continuing act of sexual harassment because she would have been
supervised in those positions by Sergeant Gardiner, who was allegedly abusive and
hostile to her before termination. Second, in January 2000, more than a year after her
termination, Sergeant Gardiner while working at a second job came to the hospital
where Dains was then working and called her to say hello. Though seemingly
innocuous, Dains averred in her post-deposition affidavit that this contact from a
1
The Honorable FREDERICK R. BUCKLES, United States Magistrate Judge
for the Eastern District of Missouri, to whom the case was referred with consent of
the parties pursuant to 28 U.S.C. § 636(c).
-2-
former harasser made her fearful. The district court concluded that these actions did
not affect the terms or conditions of Dains’s employment, were not based on sex, and
therefore were not sufficient evidence of discrimination or continuing sexual
harassment during the limitations period to defeat the University’s motion for
summary judgment. After careful de novo review of the summary judgment record,
we agree. Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-