Doerr v. Colorado Division of Youth Services

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 20 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT DOERR,
Plaintiff-Appellant,
v. No. 03-1096
(D.C. No. 01-WM-819 (OES))
COLORADO DIVISION OF (D. Colo.)
YOUTH SERVICES, a division of
the State of Colorado; COLORADO
DEPARTMENT OF HUMAN
SERVICES, a Colorado Department;
PLATTE VALLEY JUVENILE
SERVICES CENTER, a department
of the Colorado Division of Youth
Services; JOHN RILEY, Director,
Platte Valley Juvenile Detention
Center, in his individual and official
capacities; BRENT NITTMAN,
Assistant Director, Platte Valley
Juvenile Detention Center; PAUL
COOPER, Director of Northeast
Region of Colorado Division of
Youth Services; TOM CHAGOLLA,
Director, Platte Valley Juvenile
Detention Center in his official
and individual capacities,
Defendants-Appellees,
and
JAMIE NUSS, in her individual
capacity,
Defendant.
ORDER AND JUDGMENT *
Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Robert Doerr appeals the district court’s orders dismissing his
employment discrimination and civil rights complaint under Fed. R. Civ. P.
12(b)(1), (6), and 56(c). He sued his employer, the Platte Valley Juvenile
Services Center (PVJSC), and the Colorado Division of Youth Services and
Department of Human Services, alleging Title VII claims of sexual harassment,
hostile environment and retaliation. He sued PVJSC directors John Riley,
Tom Chagolla, and Brent Nittman, alleging Equal Protection, Due Process, and
First Amendment constitutional violations under 42 U.S.C. § 1983. We affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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Plaintiff alleges that several co-workers made comments or gestures to
him, some derogatory, indicating that he was perceived as homosexual. He filed
a formal grievance in November 1999, prompting an investigation. The
investigation was held in abeyance at plaintiff’s request, and he did not submit his
supporting documentation until August 2000. In September 2000, the
investigation report concluded that some employees had engaged in inappropriate
behavior towards plaintiff. As a result, a directive was issued to all employees
directing them to cease all conversations regarding any employee’s sexual
orientation or any other sexual issues in the workplace.
In January 2000, defendant Chagolla told plaintiff some female employees
had complained about his behavior and interpersonal communication. Plaintiff
did not return to work after this meeting. He took an extended sick leave, but
failed to return to work after his leave expired. PVJSC terminated him in
December 2000, after he failed to respond to the three notices warning him of his
potential termination.
Harassment Claims . The district court ruled that the individual defendants
were entitled to qualified immunity because, even if it were clearly established
that anti-homosexual harassment violated the Equal Protection Clause, plaintiff
failed to allege a constitutional violation in light of his failure to present any
evidence that any of them participated in or consciously acquiesced in any
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harassment by plaintiff’s co-workers. See Murrell v. Sch. Dist. No. 1 , 186 F.3d
1238, 1250 (10th Cir. 1999). On appeal, plaintiff argues that the harassment
constitutes sexual harassment and gender discrimination in violation of the Equal
Protection Clause, but he fails to address the defects in his claim. His conclusory
allegations that the individual defendants allowed the harassment to continue are
unsubstantiated and, thus, do not create an issue of fact sufficient to oppose
summary judgment. See Elsken v. Network Multi-Family Sec. Corp. , 49 F.3d
1470, 1476 (10th Cir. 1995). The record shows the individual defendants were
unaware of the harassment until plaintiff reported it to them, and then
investigated and acted on plaintiff’s complaints. Plaintiff’s claim that the
individual defendants did not adequately investigate and address plaintiff’s
complaints is not supported by the record. There is no evidence of deliberate
discrimination by the individual defendants. See Murrell , 186 F.3d at 1250.
The district court dismissed plaintiff’s Title VII harassment claim against
the state agencies because he failed to timely exhaust his administrative remedies.
The last possible date of any harassment was his last day of work in January
2000; plaintiff did not file his charge with the EEOC until February 20, 2001.
See 42 U.S.C. § 2000e-5(e)(1) (must file charge with the EEOC within 300 days).
On appeal, plaintiff asserts he first wrote to the EEOC in December 2000 and
filed his complaint within two years of the harassing comments. Neither
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argument overcomes the defect: the December 2000 letter was also more than
300 days after the last possible date of harassment, and exhaustion of
administrative remedies is a jurisdictional prerequisite to bringing suit under
Title VII. See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse
Servs ., 165 F.3d 1321, 1326 (10th Cir. 1999).
Due Process Claims . Plaintiff contends that his due process liberty interest
in his good name and reputation was impugned and that he was terminated
without due process in February 2000. We agree with the district court that
plaintiff failed to present any evidence that any of the defendants deprived him of
a liberty interest or denied him any process in connection with his termination.
Contrary to plaintiff’s unsupported assertions, no adverse employment action was
taken against him either as a result of the complaints against him or his job
abandonment in January 2000. See Petersen v. Utah Dep’t of Corr. , 301 F.3d
1182, 1189-90 (10th Cir. 2002) (discussing what constitutes an adverse
employment action under Title VII).
First Amendment/Retaliation Claims . Plaintiff contends he was terminated
in retaliation for filing his grievance. He claims this violated his First
Amendment rights. The district court correctly ruled that his First Amendment
claim failed because his complaints about the anti-homosexual harassment he
experienced were the complaints of an employee and did not constitute speech
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that touched on a matter of public concern. See David v. City & County of
Denver , 101 F.3d 1344, 1356 & n.2 (10th Cir. 1996). He also claims this
constituted illegal retaliation under Title VII. We agree with the district court,
however, that the one-year time lapse is too great to draw a causal connection
between his protected grievance and his termination. See Conner v. Schnuck
Markets, Inc. , 121 F.3d 1390, 1395 (10th Cir. 1997) (holding four-month lapse
between protected activity and adverse action insufficient to justify inference of
causation).
Having thoroughly reviewed the record and plaintiff’s contentions, we
AFFIRM the judgment of the district court for substantially the reasons set forth
in its January 30, 2003 and February 10, 2003 orders.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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