The Honorable David S. Doty, United States District Judge for the District of 1 Minnesota, sitting by designation.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________ No. 97-4320

________________ Terry J. Artis, *

Appellant, *

v. * District Court for the Francis Howell N orth Band Booster * Association, Inc.; Francis Ho well R- * III School District; Joseph Stacy, *

Appellees. * *

* Appeal from the United States

* Eastern District of Missouri.

*

*

________________ Submitted: June 11, 1998 Filed: December 9, 1998

________________ Before HANSEN and MURPHY, Circuit Judges, and DOTY, District Judge. 1

________________ HANSEN, Circuit Judge. Terry Artis was employed by Defendant Francis Howell North Band Booste r Association, Inc. (Association) to provide supplemental instruction to the percussion section of the Francis Howell North High School march ing band. After his terminationThe Honorable Charles A. Shaw, United States District Judge for the Eastern 2 District of Missouri. 2 by t he Association, Artis, an African-American, brought an action against the thre e named defendants alleging employment discrimination based on rac e, racial harassment, and retaliation in vio lation of: (1) 42 U.S.C. §§ 1981 and 1983 (1996); (2) Title VII of the Civil Ri ghts Act of 1964, 42 U.S.C. §§ 2000e et seq. (1996); and (3) the Missouri Human Ri ghts Act (MHRA), M O
. A NN
. S TAT . § 213.010 et seq. (West 1996). Arti s soug ht punitive damages under the MHRA. He also brought supplemental state la w claims ag ainst the Association for breach of contract and defamation, and agains t Def endants Francis Howell R-III School District (School District) and Joseph Stac y (Stacy), the School District's band dire ctor, for tortious interference with contract. The district court dismissed all claims by summary judgment except the § 1981 rac e

2 discr imination claim against the Association, the Title VII and MHRA rac e discrimination claims against the School District, the tortious in terference claims against the School District and Stacy, and the b reach of contract claim against the Association. A jury found for the defendants on all remaining claims except for the b reach of contract claim against the Association, awarding Artis $3,200.

Art is appeals from the grant of summary judgment in favor of the defendant s regarding: (1) the § 1983 claim against the Scho ol District; (2) the § 1983 claim against Stacy; (3) the Title VII retaliation claims against both the School District and th e Asso ciation; and (4) punitive damages under the MHRA against the School District

. We affirm.

I. We review a summary judgment decision de novo, applying the same substantive standard applied by the district court, considering the facts in a light most favorable to the nonmoving party. See Aucutt v. Six Flags Over Mid-America, Inc. , 85 F.3d 1311,3

1315 (8th Cir. 1996). The party seeking summar y judgment must establish the absence of a genuine issue of material fact and his entitlement to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). The nonmoving party may not reston his pleadings but must produce sufficient evidence to support the existence of the essential elements of his case on which he bears the burden of proof. See Celotex , 477 U.S. at 324. Finally, we are not bound by the grounds relied on b y the district court but may affirm

on any basis supported by the record. Hanson v. FDIC , 113 F.3d 866, 869 (8th Cir. 1997) (internal citations omitted).

II.
The Association is a nonprofit corporation organized by supporters of th e marching band program, primarily parents of band members. It was organized t o provide support for the Francis Howell North High School's marching band but receives no funding from the School District. The Association and S chool District have separate payro ll systems. The Association is operated by an Executive Board, on which Stacy sits as an ex-officio member, though he is not permitted to vote on Association matters. Artis was paid directly by the A ssociation and was hired and fired by the Association's Executive Board. Artis initially received his job by asking Stacy if he could work with the band. Stacy asked the Associat ion to hire Artis, which it did. Artis entered into an agreement with the Association and with Stacy which provi ded that Artis would answer to Stacy. However, he had no employment contract with the School District.

Duri ng Artis's employment, Stacy allegedly made various racially derogator y comme nts to and about Artis. He also allegedly treated a black student who wa s ineligible for band due to his academic standing differently than he treated a whit e student, to whom he offered guidance so that the student could remain in the ban d program. Artis did not complain about or report any of the racial slurs m ade against him by Stacy until he approached Kyle Thr asher, the School's principal, about the disparate treatment of the students. Thrasher dismissed Artis's complaints, telling him4

Stacy was his boss and he would have to get along with Stacy or leave the campus

. Artis consulted three assistant superintendents, including Daniel Brown, the Schoo l Distri ct's designated harassment complaint official, who likewise provided n o assistance. Brown told Artis he woul d have to seek help from the Association because Artis was no t an employee of the School District. Artis filed a grievance with th e School Distr ict on October 4, 1994. That same week Stacy told the Associatio n president he could not work with Artis. The Association fired Artis on October 13 , 19 94, at a meeting attended by Stacy, Thrasher, and Brown, allegedly for misconduct regarding the students and disruption of the band program. This suit followed.

III.
A. Section 1983 Claim Against the School District

Artis brought this § 1983 claim against the School District to enforce his rights under § 1981, i.e., not to be discriminated ag ainst on the basis of his race in the making and enfo rcing of contracts. See 42 U.S.C. § 1981(a). Though not specificall y referenc ed in the statute, § 1981 applies to employment contracts. See Johnson v

. Railway Express Agency , 421 U.S. 454, 459-60 (1975). As indicated above, Artis was employed by the Association and entered into a contract with the Association and with Stacy. However, the School District was not a party to that contract. A federal action to enforce rights under § 1981 against a state actor may only be brough t pursuant to § 1983. See Jett v. Dallas Indep. Sch. Dist. , 491 U.S. 701, 73 5 (1989) (Section 1983 "provides the exclusive federal damages remedy for the violation of the rig hts guaranteed by § 1981 when the claim is pressed against a state actor.")

. A gove rnmental entity is not liable under § 1983 based on actions of its employee s un der a theory of respondeat superior. See Monell v. New York City Dep't of Soc

. Servs

. , 436 U.S. 658, 694 (1978). Thus, the School District is not liable fo r discrimination occurring during the performance of the contract entered into between5

the Association, Artis, and Stacy (an employee of the School District) merely because Stacy signed the contract.
For the School District to be liable, Art is must prove that the School District had an official policy or widespread custom that violated the law and caused his injury. See id. ; Board of County Comm'rs of Bryan County, Okla. v. Br own , 117 S. Ct. 1382, 1388 (1997) ; Springdale Educ. Ass'n v. Springdale Sch. Dist. , 133 F.3d 649, 651 (8th Cir

. 1998); Ki nman v. Omaha Pub. Sch. Dist. , 94 F.3d 463, 467 (8th Cir. 1996). Th e requirement of an official policy ensures that a school district is liable only for thos e acts which "'may fairly be said to be those of the [distr ict].'" Springdale Educ. , 133 F.3d at 651 (quoti ng Brown , 117 S. Ct. at 1388). An alleged illegal custom must b e widespread and may only subject a school district to liability if it is pervasive enough to have the "force of law." Id.

Artis's f ederal court complaint and his opposition to summary judgment alleg e act s by Stacy, Thrasher, and Brown. Artis alleged that Stacy made various racia l comments, and that Thrasher made one comment regarding putting "this blac k and white crap down right now." Brown, the assistant superintendent, allegedly treated Artis in
a cold , unhelpful way and told Artis that he would have to seek help from th e Association because Artis was not a School D istrict employee. Thus, Artis's complaint against the School District hinges o n isolated comments made by the band director and
one comment by the principal. Nowhere does he allege that the School District itself had an offic ial policy endorsing racial harassment. Nor does he provide evidence that the School District delegated its policy-making authority, which generally lies in th e school board, see M O
. A NN
. S TAT . § 171.011 (West 1 991), to any of these individuals. He has provi ded no evidence that the School District allowed or ignored other racia l harass ment. Assuming his allegations to be true, Artis has failed to prove that he was racially ha rassed pursuant to a policy or custom of the School District. His claim was pr operly dismissed. See Larson by Larson v. Miller , 76 F.3d 1446, 1453 (8th Cir

. 1996) (en banc) (not

ing that a school district's custom of either ignoring or authorizing6

uncon stitutional activity by its employees must be the moving force behind th e constitutional violation); Morton v. City of Little Rock , 934 F.2d 180, 183-84 (8th Cir. 19 91) (finding no § 1983 entity liability where there was no evidence that the cit y de legated policy-making authority to the police captain, whose actions were the basis for the claim).

B. Section 1983 Claim Against Stacy
Artis named Stac y as a defendant in this suit without expressly pleading against him in his individual capacity. A suit against a public official in his individual capacity requires that the public official be named in his personal capacity as an individual. If t h e complaint does not specifically name the defendant in his individual capacity, it is presumed h e is sued only in his official capacity. See Murphy v. Arkansas , 127 F.3 d 750, 75 4-55 (8th Cir. 1997) (noting that this strict pleading requirement is consisten t wit h the Supreme Court's Eleventh Amendment jurisprudence); Egerdahl v. Hibbin g Commu nity College , 72 F.3d 615, 619 (8th Cir. 1995). The district court correctl y dismissed the claim against Stacy as redundant to the claim against the School District. See Will v. Michigan De

p't of State Police , 491 U.S. 58, 71 (1989); Roberts v. Dillon , 15 F.3d 113, 115 (8th Cir. 1994).

Artis seeks, for the first time on appeal, to amend his complaint to name Stacy in his pe rsonal capacity. However, this claim was dismissed on October 14, 1997 , following a motion for summary judgment filed January 3, 1997. Artis responded to the motion on Febr

uary 13, 1997, only referring to Stacy in his official capacity. Because we find Artis had ample time to seek an amendment to his compl aint but failed to do so,
we will not allow him to amend his claim on appeal. See Freeman v. Ferguson , 91 1 F. 2d 52, 56 (8th Cir. 1990) (Magill, J., dissenting) (court is barred from addressin g argument , first raised on appeal, that leave to amend complaint should have bee n granted sua sponte by the district court unless a manife st injustice would result). Cf. id. at 55 (allowing appellant to amend his complaint where controlling Supreme7

Court case was published the day before the district court's opinion such that appellant did not have time to seek leave to amend complaint).
C. Title VII Retaliation Claim Against the School District and the Association
1. The School District A prima facie case of retaliation unde r Title VII requires a plaintiff to show: "(1) that he engaged in statutorily protected activity; (2) [that he suffered] an advers e empl oyment

action; and (3) a causal connection [existed] between the advers e employment actio n and the protected activity." Evans v. Kansas City, Mo. Sch. Dist. , 65 F.3d 98, 100 (8th Cir. 1995), cert. denied , 512 U.S . 1104 (1996). An employer may not discriminate against an employee because the employee "has opposed any practice made an unlawful employment practice." 42 U.S.C. § 2000e-3(a).
For the reasons set forth below, we find that the district court properly dismissed the Title VII claim against the School District. Therefore, we decline to decide whether the School District was even subject to suit by Artis under Title VII since the School Dist rict was not Artis's employer. We have not previously decided whether th e prot ections offered by Title VII apply to relationships outside the direct employer

employee rel ationship. Because we find that Artis fails the first prong of the Title VII analysis , we leave the question of who is an "employer" for purposes of Title VII t o another day without intimating any view on the question.

We mus t first determine whether Artis engaged in a protected activity, i.e. , whether he opposed an

unlawful employment practice. Artis complained to Stacy, the School's prin cipal, and three assistant superintendents about treatment that Stacy gave a black student that Ar

tis perceived as disparate to that given to a white student. Artis alleged he was fire d in retaliation for these complaints. (Compl. ¶¶ 13-15, Appellant's8

App. at 3.) Ignoring the issue of whether the School District was Artis's employer , op posing an employer's actions outside the ambit of an employment practice i s unprotect ed by Title VII. See Evans , 65 F.3d at 101 (finding no Title VII violatio n wh ere employee complained of school's responsibility to its students, which is not a co mplaint based on an employment practice). Though Artis also objected to th e harassmen t

he received personally, he only claimed he was retaliated against fo r oppos ing the disparate treatment of the students. Thus, Artis's retaliation claim based
on discrimination toward students does not meet the first prong of a Title VII prim a facie case. Id.

Artis argues that his complaint also includes claims that the School Distric t retaliated against him because he complain ed to the School District about Stacy's racial harassment directed at Artis personally. However, his EEOC complain t is quite specific in alleging retaliation only in relation to the disparate treatment of the students:

II. I believe that Respondent aided and abetted in my discharge in retaliation for protesting Respondent's discriminatory practices in that:

a. After being told by my supervisor that a student (black) had

been declared ineligible for band participation, I raised a question of why the student had not been counseled about his impending ineligibility like a white student had been. b. I was asked by the supervisor if this was a "black thing"? c. My relationship with the supervisor became very negativ e after I raised the different treatment. d. I protested to the principal, Kyle Thrasher (white) who refused to take my grievance seriously. He stated "Let's put this black and white crap down right now" and that the supervisor and I should just get along.9

(EEOC Compl., Appellees' App. at 1-2.) In fact, his EEOC complaint does not eve n allege discrimination, let alone retaliation, outside that related to his opposition of the disparate treatment concerning the students.

A dis crimination claim will only be heard if the claimant has exhausted hi s administrative remedies. See Wa llin v. Minnesota Dep't of Corrections , 153 F.3d 681, 688 (8th Cir. 1998). Claims which are "like or reasonably related to the substance of the c harges" in the EEOC complaint are deemed administratively exhausted and ar e proper ly within the scope of the lawsuit. See id. ; Tart v. Hill Behan Lumber Co. , 3 1 F.3d 668, 673 (8th Cir. 1994). Artis's EEOC retaliation claim was very specific and did not mention harassment against him personally. It was not until he opposed th e defendants' motion for summary judgment that Artis construed his court complaint t o include retaliation based on his opposition to the personal racial harassment from Stacy he all egedly suffered. However, Stacy's racial harassment was not related to th e incident concerning the alleged disparate treatment of the students. Thus, Artis' s retali ation claim based on racial harassment is not "like or reasonably related to" hi s EE OC complaint. See Tart , 31 F.3d at 673 (disallowing a hostile environmen t discrimination claim brought in conjunction with a discriminatory discharge clai m because the incidents supporting each were distinct); Williams v. Little Rock Mun

. Water Works , 21 F.3d 218, 223 (8th Cir. 1994) (refusing to consider a discrimination claim whe re the EEOC charge, alleging retaliation for filing a previous EEO C
com plaint, did not hint of race discrimination). The retaliation claim was properl y dismissed. S ee Hanson , 113 F.3d at 869 (noting we may affirm on any groun d disclosed in the record).
2. The Association Title VII applies to employers with "fift een or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . ." 42 U.S.C.A. § 2 000e(b). Separate entities may be consolidated for purposes of10

meetin g this employee numerosity requirement in certain circumstances. Th e Association employed two people during the relevant time. Thus, the Associatio n acting alone is n ot covered by Title VII. This does not end our inquiry, however. We must determine whether the Associa tion and the School District can be consolidated to meet the employee numerosity element. Separate entities can be consol idated to meet the Title VII employee numerosity requirement based on the following factors: "(1) interrelatio n of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control." Baker v. Stuart Broadcasting Co. , 5 60 F.2d 389, 392 (8th Cir. 1977) (applying factors used by the National Labor Relations Board under the Fair Labo r Standards Act to Title VII to determine whether two related entities cou ld be considered
as a single employer); see also Massey v. Emergency Assistance, Inc. , 724 F.2d 690, 690-91 (8th Cir.) (per curiam) (approving of the Baker analysis in a Title

VII case), cert. denied , 469 U.S. 930 (1984). The evidence compels a finding that these entities should not b e combined. The Association and the School District have separate payrol l systems. Artis was paid by the Association a nd fired by its Executive Committee. The Asso ciation receives no funding from the School District. Stacy is the only employee of the School District who sat on the Associatio n's Executive Committee. However, he lacked the power to vote on committee matters, including Artis's employment. Artis argues there was centralized control of labor r elations because he answered to S tacy. The Association, Artis, and Stacy all signed a "Statement of Agreement " which pro vided that Artis would answer to Stacy and that Stacy ultimately decide d Artis's responsibilities. We believe this is insufficient to find centra lized control of labor
re lations between the Association and the School District. Stacy was an employee of the School District; none of the Board members o r administrators of the School District
were involved in the agreement or had power over Artis. Even if this provides som e support for one of the consolidation factors, all factors are to be11

cons idered, with no one factor controlling. See Iowa Express Distrib., Inc. v. NLRB , 739 F.2d 1305 , 1310 (8th Cir.), cert. denied , 469 U.S. 1088 (1984). Based on th e totali ty of the circumstances, we find the district court correctly concluded that th e Association did not meet the employee numerosity requirement under Title VII.

D. Punitive Damages Under the MHRA
This case went to tri al on the claims that survived summary judgment. The jury returne d a verdict in favor of the School District on the MHRA race discriminatio n claim. We need not reach the question of whether punitive damages are allowed against a school distri ct under the MHRA because the unappealed jury verdict precludes such da mages in this case. See Feltmann v. Sieben , 108 F.3d 970, 977 (8th Cir. 1997 ) (noti ng a claim for punitive damages must fail where there is no support for th e underlying claims ), cert. denied , 118 S. Ct. 851 (1998). As such, the issue of whether Artis would have been entitled to punitive damages from the School District is moot.

IV.
Artis failed to provide evidence that the School District had a policy or custom of endorsing racial harassment or discrimination necessary to sustain his § 1983 claim against the School D istrict. Artis's § 1983 claim against Stacy, a school official, is the
same as a claim against the School District itself and, thus, is redundant to the § 1983 claim against the School District. Artis's complaint about disparate treatment toward students is an inappropriate basis for a Title VII retaliation claim by him because such a complaint does not involve an employm ent practice. The Association and the School District do not meet the factors for consolidation under Title VII's employee numerosity
re quirement, and, for that reason, Artis cannot maintain a Title VII action against th e Association. Finally, the jury verdict for the defendants on the MHRA claim moots the12

issue of pun itive damages. For the foregoing reasons, we affirm the judgment of th e district court. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT