F I L E D

United States Court of Appeals

Tenth Circuit

APR 20 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT DOERR,

Plaintiff-Appellant,

v.

COLORADO DIVISION OF

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.

No. 03-1096

(D.C. No. 01-WM-819 (OES))

(D. Colo.)
* This order and judgment is not binding precedent, except under the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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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.
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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