United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2921

___________

Bonnie J. Jensen; Clarence D. Jensen, *

*

Plaintiffs-Appellants, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

William J. Henderson, Postmaster *

General of the United States; Karl *

Palloch; Larry Ibach; Gregg Sachow; *

Thomas Greene, in their individual *

capacities, *

*

Defendants-Appellees. *

___________

Submitted: May 15, 2002

Filed: December 10, 2002

___________

Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.

___________

BRIGHT, Circuit Judge.

Bonnie Jensen, a United States Postal Service (Postal Service) employee,

appeals the district court's grant of summary judgment on her Title VII hostile work

environment claims of sexual harassment in favor of the Postal Service and several

of her co-workers. The district court concluded that Jensen's claims against the Postal

Service were time barred because she failed to exhaust her administrative remedies

and that she also failed to state viable claims against the individual co-workers. 
1

In her complaint, Jensen alleges she spoke with union president Rick Olek,

lead plant manager Clem Felchle, in Sioux Falls, South Dakota, and Postal Service

Workplace Intervention Analyst Robert Clarkson. 

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We address whether Jensen established that she timely initiated a sexual

harassment action where she ceased to actively work at the Postal Service due to the

harassment but waited more than the regulatory forty-five days to allege that the

Postal Service failed to take corrective action to remedy the hostile work

environment. In light of the recent decision by the United States Supreme Court in

Nat'l R.R. Passenger Corp. v. Morgan, ___ U.S. ___, 122 S. Ct. 2061 (2002), we hold

that the district court erred in granting summary judgment against Jensen on her

claims of sexual harassment because questions of material fact exist as to the

timeliness and nature of Jensen's complaint to preclude summary judgment. We

reverse and remand Jensen's Title VII sexual harassment claim against the Postal

Service but otherwise affirm. 

I. BACKGROUND

Bonnie Jensen has worked as a letter carrier at the Prairiewood Station Post

Office (Prairiewood Station) in Fargo, North Dakota, for more than twenty years.

Jensen alleges that beginning about May 4, 1999, Karl Palloch, Larry Ibach, Gregg

Sachow and Thomas Greene began harassing her. Palloch, Ibach, Sachow, and

Greene are fellow letter carriers at the Prairiewood Station. Jensen claims that she

contacted the Prairiewood Station manager and her union president on May 10, 1999,

regarding the harassment. After this notification, Jensen contacted other Postal

Service officials1

 in an effort to change her work environment. 

On June 4, 1999, Jensen contacted the Equal Employment Opportunity (EEO)

office and claimed that her supervisor, Jan Olson, and her co-workers were harassing

her. The EEO counselor provided general information about discrimination laws and
2

The United States Department of Labor determined that eighteen events

covering a time period from May 18, 1999 through October 18, 1999, constituted

compensable incidents. (App. at 102-105.) The parties dispute the impact of Jensen's

FECA determination in her hostile work environment claim. Since we are reversing

on other grounds, we need not address this argument at this time. 

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sent Jensen the forms necessary to formalize her complaints. Jensen did not complete

the forms. 

Jensen continued to work at the Prairiewood Station until November 15, 1999.

At that time, Jensen began outpatient psychiatric treatment. Jensen also applied for

and received Federal Employees Compensation Act (FECA) leave based on her major

depressive disorder that resulted from various work related incidents.2

 Her FECA

benefits commenced December 18, 1999, and Jensen remains on compensated leave.

While not currently working at the Prairiewood Station or any other postal facility,

the Postal Service still considers Jensen an employee.

On January 20, 2000, Jensen's attorney sent a letter to the Equal Employment

Opportunity Commission (EEOC) requesting a "formalization and continuation of the

complaint process" and noting "that the Postal Service has not resolved the matter"

of harassment. (App. at 48.) The subsequent mediation failed, and Jensen filed a

formal complaint with the EEOC on March 15, 2000. The EEOC determined that

while Jensen contacted the EEO on June 4, 1999, she abandoned her complaint by

failing to timely pursue her claims. The EEOC advised Jensen of her right to pursue

further agency appeal or to file suit in federal district court. Jensen chose to file suit

in federal court. 

In her complaint, Jensen alleged that the Postal Service "conducted an

ineffective investigation of the incidents complained of, and failed to take appropriate

and effective steps to remedy the harassment." (App. at 25.) Without conducting a

hearing and in a written order, the district court converted the Postal Service's motion
3

At this point, we find it necessary to point out the record and facts before us

are very limited. The Postal Service filed a motion to dismiss in this case before

either party had an opportunity to conduct any discovery. Therefore, the facts in the

record are limited to Jensen's complaint and the Postal Service's motion to dismiss

with supporting affidavits. As discussed in Section II. of the opinion, some

procedural confusion also exists, thus a thorough discussion of the facts is difficult.

4

The district court's commentary on this issue is:

The parties devote much energy in their briefs to whether this

motion should be evaluated under the standards of Rule 12 (b) (1) [sic],

which challenges jurisdiction and allows consideration of matters

outside the pleadings, or Rule 12 (b) (6) [sic], governed by the

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to dismiss into summary judgment.3

 The district court then granted summary

judgment in favor of the Postal Service. Jensen also sued Palloch, Ibach, Sachow and

Greene individually under state law claims, including infliction of emotional distress,

and 42 U.S.C. §§ 1985 and 1986. The district court dismissed these claims against

the individual defendants. 

II. STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment. See Ihnen v.

United States, 272 F.3d 577, 579 (8th Cir. 2001). Summary judgment is appropriate

where the evidence, viewed in the light most favorable to the non-moving party,

demonstrates that there is no genuine issue of material fact, and that the moving party

is entitled to judgment as a matter of law. See Clark v. Kellogg Co., 205 F.3d 1079,

1082 (8th Cir. 2000); see also Fed. R. Civ. P. 56(c).

The Postal Service originally moved to dismiss under Federal Rule of Civil

Procedure 12(b)(1) (motion to dismiss for lack of subject matter jurisdiction).

However, the district court chose to treat the Postal Service's claims as one under

Rule 12(b)(6) (motion to dismiss for failure to state a claim).4

 The district court then
traditional rules for evaluating motions to dismiss. Also complicating

the matter is that the motion has overtones of a summary judgment

motion under Rule 56. The Court concludes that it will generally apply

Rule 12 (b) (6) [sic], but it will treat the motion as one for summary

judgment under Rule 56 as it relates to the issue of administrative

exhaustion . . . .

(Add. at 4.)

5

The parties dispute whether the district court could consider the Postal

Service's Rule 12(b)(1) motion as a Rule 12(b)(6) motion. It is not always

inappropriate to convert a Rule 12(b)(1) motion into a Rule 12(b)(6) motion.

See Layton v. United States, 919 F.2d 1333, 1335 (8th Cir. 1990) ("conversion may

have been appropriate"). We recognize that the parties devote part of their appeal to

this issue, however, we need not decide, at this time, whether administrative

exhaustion of Jensen's claims should be considered under Rule 12(b)(1) or Rule

12(b)(6). 

6

The regulation provides:

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converted the motion to dismiss into summary judgment. Because we resolve the

matter on other grounds, we will apply the summary judgment standard as used by the

district court for the purposes of this opinion.5

III. DISCUSSION

A. Hostile Work Environment

In order for a federal employee to sue under Title VII, the employee must

satisfy certain time limitations. See Brown v. Gen. Serv. Admin., 425 U.S. 820, 833

(1976). As a federal employee, Jensen is required to initiate contact with an EEO

counselor within forty-five days of the alleged discriminatory conduct. 29 C.F.R. §

1614.105(a)(1).6

 
(a) Aggrieved persons who believe they have been discriminated

against on the basis of race, color, religion, sex, national origin, age or

handicap must consult a Counselor prior to filing a complaint in order

to try to informally resolve the matter

(1) An aggrieved person must initiate contact with a Counselor

within 45 days of the date of the matter alleged to be discriminatory....

29 C.F.R. § 1614.105(a)(1). 

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The district court rejected Jensen's hostile work environment claims based on

its determination that she contacted the EEO outside of the forty-five-day period. The

district court ruled that Jensen needed to show one discriminatory act within fortyfive days from the last day she worked at the Prairiewood Station, which was

November 15, 1999. Under the district court's view, Jensen could not claim

discrimination after November 15 because she was not exposed to the alleged

harassment since she no longer worked with her co-workers. Therefore, the district

court determined that Jensen's forty-five-day window for filing a complaint was from

November 15, 1999, to approximately December 30, 1999. The district court

concluded Jensen's January 20, 2000 complaint was untimely. 

In also rejecting Jensen's continuing violation theory, the district court

explained that "the purpose of the continuing violation theory is to allow a plaintiff

to include events which occurred outside the limitations period as part of her

properly-filed case." (Add. at 9.) The district court determined that Jensen did not

point out any incident in the forty-five-day period that allowed her to use the

continuing violation theory to reach back beyond that time to include events that

occurred outside of the forty-five-day period. 

Jensen argues that the district court erred in its calculation of the forty-five-day

period because her claims are based on the Postal Service's "continued failure to take

remedial action . . . a violation which continues to this day." (Appellant's Br. at 14.)
7

An employer may be liable for a hostile work environment where the employer

knew of the harassment but failed to take corrective action, or takes inadequate

action. See Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998).

8

"Hostile work environment claims based on racial harassment are reviewed

under the same standard as those based on sexual harassment." Morgan, 122 S. Ct.

at 2074 n.10 (citations omitted).

9

Morgan addresses the 180-300-day filing rule for non-federal employees.

However, courts have treated the forty-five-day requirement for federal employees

in much the same way. See, e.g., McFarland v. Henderson, 307 F.3d 402, 408 (6th

Cir. 2002) (applying Morgan to a postal employee's claim of constructive discharge

as a result of sex discrimination where the Postal Service alleged that the employee

did not timely initiate her claim).

-7-

Based on the individual acts of harassment, Jensen maintains that the Postal Service's

continued failure to redress the situation at the Prairiewood Station creates a hostile

work environment such that she cannot return to work.7

 

After the district court made its decision and after we heard oral argument, the

United States Supreme Court, in Nat'l R.R. Passenger Corp. v. Morgan, ___ U.S. ___,

122 S. Ct. 2061 (2002), addressed what constitutes the timely filing of Title VII

claims. In particular, the Court clarified the use of the continuing violation doctrine

in Title VII hostile work environment cases. Morgan, an Amtrak employee, alleged

that he had been subjected to discrete discriminatory and retaliatory acts and had

experienced a racially hostile work environment. Id. at 2068.8

 Morgan complained

of some racially motivated conduct by his co-workers that occurred outside the

statutory time period, i.e., more than 300 days before the filing of his EEOC charge.9

Id. The Court resolved whether events that fell outside the time period could be

considered under claims of discrete discriminatory acts and claims of hostile work

environment. Id. at 2077. 
-8-

In addressing discrete acts of discrimination, the Court held that "discrete

discriminatory acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges." Id. at 2072. The Court then distinguished

hostile work environment claims holding that "[i]n order for the charge to be timely,

the employee need only file a charge [within the relevant time period] of any act that

is part of the hostile work environment." Id. at 2075. 

The Court noted that hostile work environment claims "are different in kind

from discrete acts" because "[t]heir very nature involves repeated conduct." Id. at

2073. The Court further explained: "The 'unlawful employment practice' therefore

cannot be said to occur on any particular day. It occurs over a series of days or

perhaps years, and, in direct contrast to discrete acts, a single act of harassment may

not be actionable on its own." Id. Therefore, courts must look to "all the

circumstances, including the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee's work performance." Id. at

2074 (internal quotes and citation omitted).

The Court determined that timely filing provisions require only that "[p]rovided

that an act contributing to the claim occurs within the filing period, the entire time

period of the hostile environment may be considered by a court for the purposes of

determining liability." Id. at 2074 (emphasis added). "The statute does not separate

individual acts that are part of the hostile [work] environment claim from the whole

for the purposes of timely filing and liability." Id. at 2075. 

In essence, the Court has simplified the law by allowing courts to view

allegations of hostile work environment as "a single unlawful employment practice."

Id. at 2075. Only the smallest portion of that "practice" needs to occur within the

limitations period for the claim to be timely. See Shields v. Fort James Corp., 305

F.3d 1280, 1282 (11th Cir. 2002) ("Put simply, if the smallest portion of that 'practice'
10We have previously explained that all hostile working environments are "an

ongoing nightmare for the employee victim, in legal parlance, a continuing violation."

Van Steenburgh v. Rival Co., 171 F.3d 1155, 1159 (8th Cir. 1999) (internal quotes

and citation omitted). Therefore, "[a]n incident within the limitations period need not

satisfy the definition of sexual harassment under Title VII when viewed in isolation."

Id.

11Under these circumstances, we need not address Jensen's equitable estoppel

and tolling arguments at this time.

-9-

occurred within the limitations time period, then the court should consider it as a

whole."). Here, in light of the statement of law in Morgan for hostile work

environment claims, the district court erred in concluding that Jensen needed to show

a discrete act of discrimination within the relevant time period and misconstrued the

nature of a continuing violation.10 Therefore, we reverse the district court on Jensen's

Title VII claims against the Postal Service. As explained below, we remand to the

district court for further consideration of the timeliness issue.11 

1. Nature of Claims Against Postal Service

We also conclude that the district court erred in granting summary judgment

to the Postal Service because it incorrectly construed in a number of ways that

Jensen's claims did not present issues of material fact. First, the district court

misinterpreted Jensen's claims against the Postal Service. The district court failed to

consider that Jensen's claims were against the Postal Service for not ending the

harassment by the co-workers and not just claims against the co-workers for

harassment. The district court noted that Jensen's main contention was that the Postal

Service "maintained a pervasive system of discrimination at the Prairiewood Station

and that this system persists to the present[.]" (Add. at 8.) However, the district court

viewed Jensen's claims as an attempt to "exempt[] her from the time requirements of

Title VII." Id. We disagree with the district court's view of Jensen's argument.
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Instead, we view Jensen's claims similar to those in Swenson v. Potter, 271 F.3d 1184

(9th Cir. 2001). 

In Swenson, the Postal Service argued that Swenson, a mail sorter, failed to

contact an EEO counselor within forty-five days, rather Swenson waited fifty-three

days to allege harassment based on a grabbing incident by her co-worker. 271 F.3d

at 1190-91. The Ninth Circuit determined that "the grabbing incident is not 'the

matter alleged to be discriminatory.'" Id. at 1191. Instead, the author of the opinion,

Judge Alex Kozinski, emphasized that Swenson's claims were against the Postal

Service in failing to act on her allegations of harassment. Id. ("The matter alleged

to be discriminatory is the adequacy of the employer's response, not the co-worker's

underlying behavior."). The court held that the "forty-five day period thus did not

start to run until the employer took final action on her complaint." Id. The court

determined that Swenson's claim was timely because she contacted an EEO counselor

before the Postal Service had concluded its investigation. Id. 

In several respects this case also is similar to McFarland v. Henderson, 307

F.3d 402 (6th Cir. 2002). In McFarland, a female temporary postal employee claimed

she was constructively discharged as a result of sexual harassment, when her

immediate supervisor attempted to kiss her. Id. at 404. For several months after the

incident, the supervisor was rude to her. Id. In addition, McFarland learned that

"unfounded rumors were being spread that she was sleeping with other male postal

employees," and other rumors about her alleged attitude problem. Id. McFarland

reported the rumors to a supervisor above the harasser. Approximately three months

after the attempted kiss, McFarland contacted an EEO counselor. Id. at 405. The

Postal Service alleged that McFarland's claim was untimely because she contacted the

EEO more than forty-five days after the attempted kiss. Id.

The Sixth Circuit, applying the Morgan hostile work environment analysis,

determined that McFarland's claims were timely. Based on Morgan, "[a] hostile-
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work-environment claim thus has an effect similar to that of a continuing violation

composed of successive discrete acts, in that the existence of the hostile work

environment within the 45-day time limit causes the actionable violation to

encompass conduct that occurred outside of the limit." Id. at 408. The court

concluded that McFarland's hostile work environment existed less than forty-five

days before her EEO contact because her treatment amounted to "an environment

permeated with unfounded lies about her alleged sexual promiscuity, her competence

as an employee, her being assigned to less desirable work assignments, and having

her hours reduced." Id. 

Similarly, Jensen's claims of discrimination may extend beyond her last day of

work to the time when Jensen was on leave and the Postal Service failed to address

her concerns. The allegations in Jensen's complaint charge that the Postal Service

violated Title VII by failing to take appropriate corrective action in response to her

allegations of co-worker harassment. The matter alleged to be discriminatory is the

adequacy of the Postal Service's response, not Jensen's co-worker's underlying

behavior. In essence, Jensen asserts that although she was physically absent from her

worksite more than forty-five days before formalizing her EEOC complaint, she

remained an employee and that she could not actually return to her workplace because

of the failure to remedy the sexually harassing environment.

2. Timing of Claims

The district court also misunderstood the timing of Jensen's hostile work

environment claim. In her complaint, Jensen alleged that the Postal Service subjected

her to a hostile work environment and failed to take adequate measures to ensure that

she could work in an environment free of co-worker sexual harassment. Jensen

maintains that a pervasive system of discrimination exists at the Prairiewood Station

until the Postal Service takes appropriate corrective action to remove the harassment

from her workplace. 
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The Second Circuit has recognized that sexual harassment can be a continuing

violation even though the employee is not working. See Cornwell v. Robinson, 23

F.3d 694 (2d Cir. 1994). Cornwell, a female, worked at a residential facility for male

juvenile offenders. Id. at 697. Cornwell alleged that she was subjected to a hostile

work environment by her male co-workers and supervisors. Id. The incidents of

harassment culminated when a male co-worker hit Cornwell in the chest with a

basketball. Id. at 699. The blow badly bruised Cornwell's chest and she took a week

off of work. Id. Between 1983 and 1986, Cornwell was absent from work due to the

injury, or from sick leave, and received workers' compensation. After having been

on workers' compensation for almost two years, the facility terminated Cornwell.

Approximately a year later, Cornwell resumed her employment at the facility. Id. at

699. Cornwell worked for approximately a month before she left the facility after

being cornered by the same supervisor she previously accused of harassment. Id. at

700. 

On appeal, the defendants challenged the timeliness of Cornwell's complaints.

Id. at 703. The Cornwell court upheld the district court's holding that Cornwell's

complaint was timely because:

the only reason the harassment had not continued in the interim between

February 1983 and March 1986 was Cornwell's absence on account of

the illness precipitated by the first set of incidents. . . . [T]he court

properly concluded that the acts of discrimination and harassment by the

individual defendants constituted a continuing wrong that did not end

until April 1986, when Cornwell was finally driven from MacCormick

for good. 

Id. at 704.

Jensen's claim is similar to that in Cornwell. Jensen's inability to return to

work resulted from the Postal Service's ill treatment of her. Her absence is due to the
12We note that some factual indications suggest that Jensen's January 20 letter

may show an act contributing to her claim occurred within the filing period. For

instance, at oral argument, the Postal Service indicated that various communications

occurred after November 15, 1999, between Jensen and the Postal Service regarding

the possibility of Jensen's return to work. The Postal Service described it as an "ongoing process" that continues to date. 

-13-

physically and psychologically damaging harassment she experienced at her worksite.

Jensen has alleged that as a result of the sexual harassment she received in her

workplace, she became clinically depressed. 

Jensen's claims may be stronger than in Cornwell because she has not quit her

job. On the contrary, she is still employed by the Postal Service but allegedly has

been unable to return to work and she has received no indication that the environment

of harassment has changed at the Prairiewood Station. The hostile work environment

at the Prairiewood Station still exists and the Postal Service has refused to ameliorate

the environment so that she can return to work. Employees are entitled to a

workplace free from harassment motivated by the employee's membership in a

protected class. Here, the Postal Service's failure to take action to stop the conduct,

to discipline the perpetrators, and to protect Jensen may bring her actions within

forty-five days of Jensen's formalization of her EEO complaint on January 20, 2000.12

With the recent pronouncement in Morgan and a thorough examination of the

nature of Jensen's claims, we reverse the district court's summary judgment and

remand for further proceedings. Under Morgan and its progeny, and cases cited

herein, we remand to the district court to determine whether Jensen has brought her

sexual harassment claims on a timely basis. 

B. Individual Defendant's Claims
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Jensen also asserts that the individual defendants conspired to deprive her of

her civil rights in violation of 42 U.S.C. § 1985. To prove a constitutional

conspiracy, Jensen must prove an agreement between the conspirators, by pointing

to at least some facts which would suggest that appellees reached an understanding

to violate her rights. See Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996).

Jensen has not set forth any evidence that the defendants conspired to deprive

her of her civil rights or that they were motivated by a discriminatory animus. In

addition, the district court ruled as a matter of law that Jensen was precluded from

bringing a conspiracy claim based upon the Supreme Court's holding that a litigant

may not bring a claim under § 1985(3) to redress violations of Title VII. See Great

Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 375-76 (1979) ("If a violation

of Title VII could be asserted through § 1985(3), a complainant could avoid most if

not all of these detailed and specific provisions of the law."). 

Jensen contends the district court erred because her conspiracy claims go

beyond Title VII. Even assuming that Jensen's contentions of sex-based class

discrimination are broader than Title VII, her § 1985(3) claim still fails. Purposeful

discrimination must be established for a party to succeed on a § 1985(3) claim. See

McIntosh v. Ark. Republican Party-Frank White Election Comm., 766 F.2d 337, 340

(8th Cir. 1985). Jensen has failed to produce evidence to support a finding of

purposeful discrimination. Other than the general allegation in her complaint, Jensen

did not allege any sort of conspiracy between the individuals sufficient to state a

claim. See Palesch v. Mo. Comm'n on Human Rights, 233 F.3d 560, 570 (8th Cir.

2000) (stating conclusory allegations that the individual defendants were out to get

plaintiff based on race and gender does not state a claim). The district court properly

dismissed this claim. 

Finally, Jensen maintains that the district court erred in dismissing her claims

under 42 U.S.C. § 1986 (action for neglect to prevent commission of § 1985
-15-

violation). Such claims are dependent upon a valid § 1985 claim. See Lewellen v.

Raff, 843 F.2d 1103, 1116 (8th Cir. 1988). Because the district court properly

dismissed Jensen's § 1985 claims, it also correctly dismissed Jensen's § 1986 claims

against the individual defendants. 

IV. CONCLUSION

We affirm the district court's judgment as to the individual defendants.

However, we reverse the district court's grant of summary judgment to the Postal

Service on Jensen's Title VII claims and remand for further proceedings consistent

with this opinion. 

A true copy.

Attest:

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