Hervey v. County of Koochiching

527 F.3d 711, 2008 U.S. App. LEXIS 12250, 103 Fair Empl. Prac. Cas. (BNA) 813, 2008 WL 2330900
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 9, 2008
Docket06-3891
StatusPublished
Cited by171 cases

This text of 527 F.3d 711 (Hervey v. County of Koochiching) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hervey v. County of Koochiching, 527 F.3d 711, 2008 U.S. App. LEXIS 12250, 103 Fair Empl. Prac. Cas. (BNA) 813, 2008 WL 2330900 (8th Cir. 2008).

Opinions

COLLOTON, Circuit Judge.

Florence Hervey brought a claim pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Minnesota Human Rights Act, Minn.Stat. § 363A.01 et seq., alleging that her employer, Koochiching County, and supervisors Duane Nelson and John Mastín, discriminated against her on the basis of her sex, and retaliated against her for participation in a protected activity. She also brought a state claim against the County for violation of the Minnesota Government Data Practices Act, Minn.Stat. § 13.02, subd. 7. The district court1 granted summary judgment in favor of the defendants on all claims. Hervey v. County of Koochiching, No. 04-4537, 2006 WL 2990515 (D.Minn. Oct. 20, 2006). We affirm the dismissal of the discrimination and retaliation claims, and remand with directions to dismiss the Data Practices Act claim without prejudice.

I.

Because we are reviewing a grant of summary judgment, we describe the facts in the light most favorable to Hervey. Hervey worked for 25 years as a corrections officer in the Koochiching County Jail. In 2002, she was promoted to the newly-created position of jail administrator. At that time, Sheriff Duane Nelson decided that the jail administrator would report directly to him, rather than to Robert Byman, the undersheriff and second in command.

Hervey, Byman, and Nelson worked without incident for two years. Byman then announced his retirement, and Nelson selected John Mastín to be the new under-[716]*716sheriff. Even before his official start date, Mastín convinced Nelson to change the reporting structure of the department, so that all employees, including Hervey, reported through him. On April 3, 2003, a new organizational chart was distributed to the staff indicating this change.

Hervey objected to the new reporting structure. She e-mailed Nelson, explaining that her job description showed her reporting directly to him, not to the under-sheriff. Two days later, Nelson called a meeting with Hervey, Byman, and Mastín. At the meeting, Nelson became upset with Hervey. He told Hervey that her e-mail had made him “so damn mad,” that she was “disrespectful,” and that he had received complaints from employees in the courthouse who were concerned that Her-vey was trying to run the department. He also told her that the county commissioners wanted to reevaluate the need for a jail administrator. During this exchange, Hervey told Nelson that he had “respectful workplace issues.” After an hour, Byman and Mastín left the room and Nelson apologized to Hervey. He gave her a hug and said, “you’re going to have problems with [Mastín], aren’t you?”

Disputes continued between Hervey and her two supervisors, Nelson and Mastín. On September 15, 2003, Hervey sent an email to the county attorney asking whether it was lawful for her to be driving in a patrol car with a shotgun in it. When Nelson learned that Hervey had sought advice outside of the department without checking with him, he became angry. Nelson and Mastín stormed into Hervey’s office and asserted that her action was in direct violation of a departmental directive, which stated that “[p]rior to going outside the department with any departmental concerns, approval shall be obtained from the Sheriff or [Undersheriff].” Nelson also accused Hervey of going behind his back to the county board and county coordinators.

After this incident, Mastín and Nelson gradually reduced Hervey’s duties as jail administrator. Shortly after Mastín became the undersheriff, he asked Hervey to provide a written explanation of her job duties, and an explanation of who performed those duties before the jail administrator position was created. Hervey perceived this request as a message that her position was unnecessary. Then, in late October 2003, Mastín told Hervey that he was going to take some of her responsibilities away from her, and transfer them to himself and the sheriffs secretary. Mas-tín also informed Hervey that she would keep the title of jail administrator, but that the position would be eliminated after she left the department.

During the fall of 2003, the County Board expressed concern that a jail administrator position was not necessary. As an alternative to eliminating the position, Nelson agreed to cut the budget for part-time corrections officers, with a consequence that Hervey was required to fill some of the lost shifts. Mastín informed Hervey that she must work two hours each day as a corrections officer, starting January 1, 2004, because the department was having budget problems.

On February 6, 2004, Mastín conducted a performance evaluation of Hervey, and gave her mixed reviews. He gave her high ratings for her knowledge of the position and productivity, but low ratings for teamwork, judgment, and dependability. Mastin’s overall rating of Hervey was two out of five. He felt that she was supportive of her own staff in the corrections area, but needed to become a team player within the overall department.

Hervey did not agree with Mastin’s evaluation. The next Monday, February 9, she decided that she was going to take [717]*717time off to prepare a formal complaint against Mastín and Nelson. She left a message on Mastin’s voicemail on Monday, and told two of her subordinates that she would not be at work on Tuesday. Tuesday night, Hervey again called two of her subordinates to inform them that she would be gone on Wednesday. She asked them to leave a voicemail for Mastín. Hervey did not inform Mastín and Nelson, however, that she intended to file a complaint against them.

Mastín called Hervey at home Wednesday morning to ask why she had not been at work. He claimed that he had not received a voicemail from her, and that he wanted to meet with her on Thursday morning to discuss her absences. At the Thursday morning meeting, Mastín called Hervey a liar, again stating that he had not received a voicemail message. Hervey then told Mastín that she had filed a complaint with the Minnesota Department of Human Services. Mastín told Hervey that when the sheriff returned to the office, the three of them would meet, and Mastín told her he would “suggest to the sheriff that you report to work from now on in brown because you are no longer a supervisor.” (Hervey App. 34).

On February 13, Mastín wrote to Sheriff Nelson, recommending that Hervey “continue as Jail Administrator with duties to be reviewed and discussed but wear the same uniform as the other correctional officers.” (Hervey App. 174). Mastín opined that Hervey had “many admirable abilities,” but that “her leadership and judgment” were inadequate. (Id. at 173). He listed six reasons for his recommendation: (1) Hervey’s “wearing the white shirt of a supervisor has caused and will continue to cause tension among staff and lower morale within our office and other agencies,” (2) the position of Jail Administrator as it had been conducted was not consistent with the formal job description, (3) Hervey failed “to responsibly supervise and provide adequate attention to individuals that were not ...

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527 F.3d 711, 2008 U.S. App. LEXIS 12250, 103 Fair Empl. Prac. Cas. (BNA) 813, 2008 WL 2330900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hervey-v-county-of-koochiching-ca8-2008.