Zachary WINSPEAR, Appellant, v. COMMUNITY DEVELOPMENT, INC., Charles Schneider, and Lana Sierra, Appellees, 574 F.3d 604

MELLOY, Circuit Judge. Zachary Winspear appeals a district court’s adverse grant of

summary judgment dismissing his employment discrimination claim against Community Development, Inc. (“CDI”). We reverse and remand for further proceedings. I. “We review a district court’s grant of

summary judgment de novo .... viewing the evidence in the light most favorable to the nonmoving party and giving that party the benefit of all inferences that may reasonably be drawn.” Jackson v. United Parcel Serv., Inc., 548 F.3d 1137, 1140 (8th Cir.2008) (internal citation and quotations omitted). Winspear began working at CDI in March 2003. Approximately four years prior to Winspear’s employment at CDI, Winspear’s brother, Logan, had committed suicide. Winspear had been close to Logan. He refers to Logan as his best friend and only “real” family member.

His close relationship with Logan was due in part to the brothers’ difficulties with their strict religious upbringing and their respective rejections of organized religion. Winspear spent years grieving for his brother and was nearly incapacitated by his brother’s suicide. Winspear became so distraught that he contemplated suicide himself. When Winspear started with CDI in 2003, he was a personal assistant to Charles Schneider, a co-owner of CDI. Winspear had a close working relationship with Schneider, they spent significant time working together, and they often discussed their personal lives.

Winspear even confided in Schneider about Logan’s suicide and the devastating emotional impact it had on him. While Winspear was at CDI, he received multiple promotions and ultimately served as CDI’s community manager. In January 2005, CDI hired Schneider’s wife, Lana Sierra, as a receptionist. Win-spear and Sierra had known each other through Schneider, and Sierra was aware of Winspear’s background, his troubled history with religion, and his brother’s suicide. One morning in late-January 2005, Sierra approached Winspear at work and asked to speak with him privately.

Win-spear and Sierra stepped into an empty office where Sierra hugged Winspear and proceeded to cry. Sierra told Winspear that she had the ability to speak with the dead and that she had been communicating with Logan. She told Winspear that Logan wanted her to pass messages to him because Logan had been trying to contact Winspear, but Winspear had not been listening. She told Winspear that Logan had said that he was suffering in hell and that Winspear would also go to hell if he did not “find God.” Winspear became very upset and asked Sierra not to speak about his brother.

He then returned to his office where he sat and cried for an extended period of time. Throughout the rest of that day, Sierra repeatedly spoke to Win-spear about her “gift” of speaking to the dead, hugged Winspear, and told Winspear that she wanted to help him. Winspear told Sierra that she was crazy, he did not believe her, and she needed to stop. Nevertheless, Sierra continued to tell Win-spear that he needed to “find God” so that he would not go to hell like Logan.

Over the next three-and-a-half weeks, Sierra, on a daily basis, repeatedly hugged Winspear, talked to him about Logan, and asked him if he had looked into communicating with the supernatural or finding God. Winspear frequently asked Sierra to stop, but Sierra continued to speak to Win-spear about Logan, encourage Winspear to research the supernatural, and invite him to church. When Winspear failed to demonstrate sufficient interest, Sierra’s demeanor grew more demanding, causing Winspear to become increasingly uncomfortable at work. Winspear began staying in his office during working hours just to avoid Sierra.

After work, he would go home, contemplate suicide, and cry himself to sleep because Sierra’s behavior caused him to relive the traumatic experience of his brother’s suicide. After approximately three weeks of Sierra’s behavior, Winspear spoke with Schneider about Sierra, even though Win-spear feared repercussions at work for complaining about Schneider’s wife. Schneider, however, merely confirmed to Winspear that Sierra could communicate with the dead, advised Winspear to heed Sierra’s advice, and told Winspear to keep Sierra’s gift secret.

Within a few days of Winspear speaking with Schneider, Winspear admits that Sierra’s direct daily harassment subsided such that she stopped speaking to him about his brother specifically. Nonetheless, Sierra continued to ask Winspear if he had given any more thought to what they had talked about. Winspear spoke with Schneider about Sierra again, but Schneider reiterated that Winspear should listen to Sierra because she had “a gift.” Schneider’s refusal to remedy the situation left Winspear crushed.

By March 2005, Winspear admits that Sierra almost completely stopped her behavior, but she still continued to ask Win-spear about finding religion every one to two weeks over the next five months. During that time frame, Sierra once told Winspear that she was frustrated with him because Logan was still trying to contact him. She also told Winspear that he needed to find God so that Logan would stop bothering her. These comments humiliated Winspear and caused him to lose any remaining enjoyment in his job.

He became so preoccupied with avoiding Sierra at work that he came to and left work at odd hours, sought opportunities to leave the building during working hours, and, while at work, avoided leaving his office to interact with others or even to use the bathroom. He became temperamental, distant from other co-workers, and unable to concentrate on his work. In August 2005, Sierra and Winspear had a heated confrontation at work over a comment Winspear made about Sierra’s former boss, a chiropractor with whom Winspear was having a billing dispute. Winspear left work after the confrontation.

CDI notified Winspear that he needed to return to work because he did not have permission for time off. Rather than return, Winspear quit his job. After exhausting his administrative remedies, Winspear subsequently sued CDI, Schneider, and Sierra in federal district court. Among other claims, Winspear alleged that he was subject to religious-based hostile work environment discrimination, in violation of federal law. CDI, Schneider, and Sierra moved for

summary judgment, which the district court granted for each of Winspear’s claims. Winspear appeals the district court’s

summary judgment decision dismissing his federal hostile work environment claim against CDI. II. On appeal, Winspear argues that the district court applied an incorrect standard when evaluating his federal hostile work environment claim. He contends that the district court treated his claim as one for constructive discharge and required him to show elements not essential to establishing that he suffered hostile work environment discrimination. Applying an appropriate analysis, Winspear claims that there are genuine issues of material fact as to whether he was subject to hostile work environment discrimination.

CDI argues that Winspear’s claim was for constructive discharge and that, regardless,

summary judgment was appropriate. Hostile work environment and constructive discharge claims may be wholly distinct causes of action under Title VII. See O’Brien, 532 F.3d at 809-11 (analyzing hostile work environment and constructive discharge claims separately, even where the claims were based on the same alleged conduct). The claims have different elements, see Anda v.

Wickes Furniture Co., 517 F.3d 526, 531-32, 534 (8th Cir.2008), and, while a hostile work environment can form the basis for a constructive discharge allegation, hostile work environment discrimination can exist absent a “tangible employment action,” see Pa. State Police v. Suders, 542 U.S. 129, 143, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).

Count One of Winspear’s Complaint against CDI alleges that “Defendant CDI violated Title VII of the Civil Rights Act of 1991 by creating a hostile work environment for [Winspear] on the basis of religion and by failing to take prompt remedial action to correct the hostile work environment.” As a factual basis for this charge, it incorporates the Complaint’s factual allegations, which relate almost exclusively to Sierra’s conduct between January and August 2005.

The Complaint itself does not allege constructive discharge' — ■ much less contain the words “constructive discharge” — and the only factual allegation in the Complaint related to Winspear’s resignation states, “In August 2004[sic] plaintiff resigned his employment with CDI.” CDI argues, however, that Winspear made a subsequent sworn declaration that changed his pleadings such that his hostile work environment claim became a claim for constructive discharge. Specifically, CDI claims that in Winspear’s response to CDI’s motion for

summary judgment, Win-spear filed a statement in which he said that he quit his job “to escape the religious and other harassment by Sierra.” CDI argues that this statement demonstrates that Winspear truly alleges constructive discharge based on a hostile work environment. We disagree with CDI’s contention. The Federal Rules of Civil Procedure contain specific rules that plaintiffs must follow to amend their pleadings. See Fed. R.Civ.P. 15. Under these Rules, plaintiffs have one opportunity before trial to amend their complaints freely within a limited time period. Id. at 15(a).

Thereafter, they must obtain the opposing party’s or the court’s permission before amending their complaints. Id. Here, there is nothing in the record showing that Winspear made any effort to amend his pleadings pursuant to the Federal Rules of Civil Procedure. There is also nothing indicating that CDI consented to such an amendment or that the district court granted Winspear permission to make such an amendment. Moreover, CDI cites no authority for the proposition that Winspear’s conduct sufficed to amend his Complaint outside of the Federal Rules of Civil Procedure.

Furthermore, even if we indulged CDI’s argument that Winspear did somehow amend his pleadings, the most we would be able to say from the record is that Win-spear made a constructive discharge allegation in addition to, not in lieu of, his original hostile work environment claim. Winspear at no point in this matter abandoned his original hostile work environment claim, and he specifically supported that claim in his Complaint, in the above-referenced sworn declaration, in his response to CDI’s motion for

summary judgment, and on appeal. Thus, regardless of whether Winspear at some point raised a constructive discharge claim, his original hostile work environment claim remained at all times a properly alleged part of this lawsuit, and we agree that his claim must be analyzed accordingly. A review of the district court’s

summary judgment order reveals, however, that the court did not reach a specific finding as to whether Winspear suffered hostile work environment discrimination. While the court recognized that “Winspear may have raised a genuine issue of material fact as to whether Sierra’s repeated comments about Winspear’s brother suffering in Hell and about Winspear needing to find God constituted a hostile work environment,” Winspear v. Cmty. Dev.

Inc., 553 F.Supp.2d 1105, 1108 (D.Minn.2008), it resolved Winspear’s claim by stating that “[t]he four- to five-month lapse in time between when Sierra allegedly stopped harassing Winspear and when he resigned [was] fatal to his constructive discharge claim,” id. Based on our conclusions above, the district court’s analysis of Winspear’s hostile work environment claim was erroneous because it treated the claim as one for constructive discharge, requiring elements unnecessary to resolving Winspear’s hostile work environment claim.

Because the district court did not reach a specific finding on this issue but indicated that Winspear may have suffered hostile work environment discrimination, we remand to the district court to address this issue in the first instance. III. For the foregoing reasons, we reverse the district court’s grant of

summary judgment and remand for further proceedings consistent with this opinion. . The dissent makes note of the fact that Win-spear stated the conduct continued for four-to-five months, which contradicted his earlier statement that the harassment was daily for three-and-a-half weeks. With due respect to the dissent, even if the harassment did cease entirely after three-and-a-half weeks, three- and-a-half weeks of daily harassment may be sufficiently pervasive to withstand

summary judgment. It is not only the number of occasions, but the severity of the conduct — playing into Winspear’s expressed grief over his brother's suicide — that courts must consider. See O'Brien v. Dep’t of Agric., 532 F.3d 805, 809 ("Hostile work environment claims are assessed based on the totality of the circumstances....”); Green v. Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir.2006) (“Frequency of harassment is a factor, but even infrequent conduct can be severe enough to be actionable.”).