___________

No. 95-1245

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George L. Gipson, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

KAS Snacktime Company, *

*

Defendant - Appellee. *

___________

 Submitted: November 15, 1995

 Filed: May 7, 1996

___________

Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

George L. Gipson is an African-American sales manager for KAS

Snacktime Company ("KAS"). He commenced this race discrimination action

against KAS, alleging violations of the Missouri Human Rights Act ("MHRA"),

Mo. Rev. Stat. §§ 213.010 et seq., and Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e et seq. The district court dismissed Gipson's

MHRA claims as time-barred or not administratively exhausted. The court

ruled in favor of KAS following a bench trial of the Title VII claims.

Gipson appeals. We conclude that Gipson preserved an MHRA hostile work

environment claim that is not time-barred. Accordingly, we reverse and

remand.

I. Background.

In 1986, KAS promoted Gipson to Regional Sales Manager for the St.

Louis region, a mid-level management position. In July 1987, KAS hired

Rick Brank as Gipson's immediate supervisor. The next
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month, Borden, Inc., acquired KAS. Gipson's employment fortunes declined,

culminating in his demotion to District Sales Manager in March 1989.

Gipson blames this on an atrocious working relationship with Brank caused

by Brank's racial bigotry. KAS denies race discrimination in its

workplace. 

In July 1989, following his demotion, Gipson filed a Charge of

Discrimination with the Missouri Commission on Human Rights ("MCHR") and

the Equal Employment Opportunity Commission ("EEOC"). On the Charge form,

Gipson checked the box alleging race discrimination and stated in the

"particulars" section of the form:

I was continually harassed by my immediate supervisor in that

I was reprimanded, rated unfairly, placed on probation and

performance programs, subjected to different terms and

conditions of employment from a White Regional Manager, and

finally demoted. 

Gipson attached a three-page supporting affidavit detailing unfair

treatment by supervisor Brank and the failure of various KAS vice

presidents to act on Gipson's complaints against Brank.

Brank left KAS in February 1991. Gipson received right-to-sue

letters from the MCHR and the EEOC in mid-1991. He commenced this action

on July 27, 1991, asserting race discrimination and retaliation claims

under the MHRA and Title VII. Gipson alleged a continuing course of

racially discriminatory conduct, including:

-- false performance evaluations;

-- denied raises;

-- an unwarranted performance improvement program;

-- unwarranted threats of termination;

-- improper demotion to District Sales Manager;

-- reassignment to a predominately white rural area;
 trial of his Title VII claims 1

because they arose prior to the enactment of 42 U.S.C. § 1981a(c).

See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994).

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-- threats of physical injury;

-- racial name-calling;

-- denied promotions;

-- discriminatory refusal to allow Gipson to hire 

employees, particularly black employees; and

-- failure by KAS to stop this unlawful conduct. 

After substantial discovery, KAS moved for summary judgment on the

MHRA claims, arguing that most are barred by the MHRA statute of

limitations, and the rest were not included in Gipson's administrative

Charge. In response, Gipson argued that all his claims are timely under

the "continuing violation" doctrine, and that his allegations of postCharge violations must be deemed exhausted because they are reasonably

related to the allegations in his Charge. Gipson attached to his summary

judgment memorandum an interrogatory answer containing a six-page

chronology of KAS's alleged discriminatory actions from July 14, 1987, to

January 8, 1991, just before Brank departed. 

The district court dismissed the MHRA claims. The court concluded

(i) that the challenged pre-Charge conduct, though continuing in nature,

is time-barred because it all occurred more than two years before Gipson

sued, and (ii) that Gipson's post-Charge allegations are not reasonably

related to the violations alleged in his Charge. Gipson v. KAS Snacktime

Co., 874 F. Supp. 1548 (E.D. Mo. 1993). After a bench trial of Gipson's

Title VII claims, the district court ruled in favor of KAS in a seventy- 1

five page Memorandum Opinion, finding that Brank was a demanding, abrasive

supervisor but that Brank's acrimonious relationship with
 Gipson does not appeal the dismissal of his retaliation

2

claims because they were not included in the Charge. See Williams

v. Little Rock Mun. Water Works, 21 F.3d 218, 222-23 (8th Cir.

1994). 

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Gipson "was not due to racial bias." Gipson v. KAS Snacktime Co., 874 F.

Supp. 1556 (E.D. Mo. 1994). This appeal followed.2

II. MHRA Claims.

The MHRA requires that claimants exhaust their administrative

remedies by filing a charge of discrimination within 180 days after "the

alleged act of discrimination." See Mo. Rev. Stat. § 213.075(1);

Southwestern Bell Tel. Co. v. Missouri Comm'n on Human Rights, 863 S.W.2d

682, 684 (Mo. App. 1993). If the agency takes no action on the charge, the

claimant may sue within ninety days of the agency's right-to-sue letter but

"no later than two years after the alleged cause occurred." Mo. Rev. Stat.

§ 213.111(1). Failure to meet these deadlines bars the claim. See Hill

v. John Chezik Imports, 797 S.W.2d 528, 529 (Mo. App. 1990); Missouri Pac.

R.R. Co. v. Missouri Comm'n on Human Rights, 606 S.W.2d 496, 502 (Mo. App.

1980).

In cases construing the analogous requirements of Title VII, federal

courts have concluded that a discrete, adverse employment action, such as

a discharge, layoff, or failure to promote, "constitutes a completed act

at the time it occurred." Boge v. Ringland-Johnson-Crowley Co., 976 F.2d

448, 451 (8th Cir. 1992). The time for filing an administrative charge or

commencing a lawsuit runs from the date of such a discriminatory act, even

if its effects on the injured employee are long-lasting. See Ashley v.

Boyle's Famous Corned Beef Co., 66 F.3d 164, 167 (8th Cir. 1995) (en banc).

"Mere continuity of employment, without more, is insufficient to prolong

the life of a cause of action for employment discrimination." Delaware

State College v. Ricks, 449
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U.S. 250, 257 (1980). Thus, if such an act is not timely challenged, the

right to relief expires: 

A discriminatory act which is not made the basis for a timely

charge is the legal equivalent of a discriminatory act which

occurred before the statute was passed. It may constitute

relevant background evidence in a proceeding in which the

status of a current practice is at issue, but separately

considered, it is merely an unfortunate event in history which

has no present legal consequences.

United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977), quoted favorably

in Missouri Pac. R.R., 606 S.W.2d at 501. 

Applying this principle, we agree with the district court that

Gipson's challenges to discrete, adverse employment actions are time-barred

under the MHRA. His claim for denied raises is barred because the denials

occurred more than 180 days before he filed his Charge. The claim for the

alleged discriminatory demotion and assignment to a rural sales territory

is barred because these actions occurred in March 1989, more than two years

before he filed this lawsuit. The claim for denied promotions was properly

dismissed because Gipson's summary judgment submission provided no factual

support for this claim. 

On the other hand, Gipson also pleaded a hostile work environment

claim, alleging that he was the victim of continuing racial harassment by

Brank. To be properly exhausted, that claim must be separately raised in

the administrative charge, because it is not reasonably related to a claim

of a discrete act of discrimination, such as demotion. See Tart v. Hill

Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994). Here, Gipson's Charge

and supporting affidavit -- which we must read liberally, Williams, 21 F.3d

at 223 -- clearly alleged a continuing pattern of workplace harassment by

Brank sufficient to state a claim for hostile work environment under the

standards set forth in Harris v. Forklift Sys., Inc., 114 S. Ct. 367, 370-

71 (1993). 
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A hostile work environment is an ongoing nightmare for the employee

victim, in legal parlance, a "continuing violation." For this type of

violation, the statute of limitations runs from "the last occurrence of

discrimination." Hukkanen v. International Union of Operating Eng'rs Local

101, 3 F.3d 281, 285 (8th Cir. 1993). "[T]he critical question is whether

any present violation exists." Satz v. ITT Fin. Corp., 619 F.2d 738, 744

(8th Cir. 1980), quoting UAL v. Evans, 431 U.S. at 558 (emphasis in

original). In his Charge of Discrimination, Gipson alleged that he had

been "continually harassed by my immediate supervisor." Because this

allegation is sufficient to plead a hostile work environment violation on

the date of his Charge, July 31, 1989, that claim was not time-barred when

he commenced this action on July 27, 1991, less than two years later. In

addition, Gipson's complaint and summary judgment response alleged that

KAS's racial harassment continued until Brank left the company in February

1991. These post-Charge allegations are reasonably related to the racial

harassment portion of the Charge and therefore must be deemed exhausted.

See Anderson v. Block, 807 F.2d 145, 147-48 (8th Cir. 1986); Gardner v.

Morris, 752 F.2d 1271, 1279 (8th Cir. 1985). Thus, the district court

erred in dismissing Gipson's hostile work environment claim under the MHRA.

Gipson further argues that, if he proves a pattern of racial

harassment constituting a hostile work environment, he may recover damages

for the entire period that this violation occurred, including any portion

that occurred more than 180 days before he filed his Charge of

Discrimination, or more than two years before he filed this lawsuit. We

disagree. This argument was rejected in our recent en banc decision in

Ashley, 66 F.3d at 167-68:

When an employer is accused of an ongoing practice that began

prior to the statute of limitations period, the claim may

nonetheless be timely under the "continuing violation"

doctrine. The employee may challenge ongoing discriminatory

acts even if similar illegal acts could
 Gipson's reliance on Havens Realty Corp. v. Coleman, 455 U.S. 3

363 (1982), is misplaced. Havens concerned standing to sue, not

the extent of damage liability. Consistent with the rule we

adopted in Ashley, the Supreme Court in Havens upheld plaintiff

Coleman's standing to challenge a continuing discriminatory

practice, but dismissed her damage claims for acts prior to the

applicable 180-day statute of limitations. 455 U.S. at 380-82.

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have been challenged earlier and are thus time-barred.

. . . Relief back to the beginning of the limitations period

strikes a reasonable balance between permitting redress of an

ongoing wrong and imposing liability for conduct long past. 

(Emphasis added; citations omitted); accord Knight v. Columbus, 19 F.3d

579, 581 (11th Cir. 1994) ("Where a continuing violation is found, the

plaintiffs can recover for any violations for which the statute of

limitations has not expired"). We conclude that the Missouri Supreme

3

Court would apply this principle to continuing violation claims under the

MHRA. See Davis v. Laclede Gas Co., 603 S.W.2d 554 (Mo. banc 1980). Thus,

if Gipson proves his hostile work environment claim on remand, he may

recover damages incurred after July 27, 1989.

III. The Jury Trial Issue.

Gipson argues that, on remand, he has a right to a jury trial of his

MHRA hostile work environment claim, an issue we have not previously

addressed. See Finley v. Empiregas, Inc., 975 F.2d 467, 471 (8th Cir.

1992). The Missouri courts do not allow jury trials of MHRA claims. In

State ex rel. Tolbert v. Sweeney, 828 S.W.2d 929, 930-35 (Mo. App. 1992),

the court reasoned that the Missouri Legislature eliminated an express jury

trial provision in the prior statute, and the Governor vetoed a bill adding

such a provision to the MHRA, thereby demonstrating a legislative intent

to deny jury trials; that Article I, § 22(a), of the Missouri Constitution,

which protects the right to jury trial "as heretofore enjoyed," does not

apply to statutory causes of action that are equitable in
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nature or involve administrative proceedings; and that the "main thrust of

relief [under the MHRA] is equitable in nature," with damages allowed only

"to allow a party full redress of any wrong." Accord Wentz v. Industrial

Automation, 847 S.W.2d 877, 880 (Mo. App. 1992).

However, the right to a jury trial in federal court is a question of

federal law, even when the federal court is enforcing state-created rights

and obligations, see Simler v. Conner, 372 U.S. 221, 222 (1963) (per

curiam), indeed, even when a state statute or state constitution would

preclude a jury trial in state court, see Byrd v. Blue Ridge Rural Elec.

Coop., Inc., 356 U.S. 525, 538-39 (1958); Herron v. Southern Pac. Co., 283

U.S. 91 (1931). Because the Seventh Amendment preserves the right to jury

trial in federal court "[i]n Suits at common law," federal law focuses upon

whether a claim is legal or equitable in nature. Damages are, of course,

the "traditional form of relief offered in the courts of law." Curtis v.

Loether, 415 U.S. 189, 196 (1974). Thus, when a federal plaintiff seeks

damages, either party may demand a jury trial, even if those damages are

merely "incidental" to equitable relief. Dairy Queen, Inc. v. Wood, 369

U.S. 469, 470 (1962). 

The Seventh Amendment right to jury trial extends to statutory causes

of action, so long as the statute allows, and the plaintiff seeks, at least

in part a legal remedy. Curtis, 415 U.S. at 194. The MHRA authorizes the

recovery of "actual and punitive damages," in addition to equitable

remedies such as backpay. Mo. Rev. Stat. § 213.111(2). Therefore, we

agree with the Eastern District of Missouri decisions holding that a

plaintiff seeking damages under the MHRA is entitled to a jury trial in

federal court. See Sullivan v. Curators of the Univ. of Mo., 808 F. Supp.

1420, 1424 (E.D. Mo. 1992); Stewart v. Yellow Frieght Sys., Inc., 702 F.

Supp. 230, 231 (E.D. Mo. 1988). 
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When the district court has erroneously dismissed a claim to which

the right to jury trial applies and has also tried another claim raising

the same or related issues to the court, the plaintiff's Seventh Amendment

right requires that the court's factual findings from the bench trial not

collaterally estop plaintiff in pursuing his legal claims. See Lytle v.

Household Mfg., Inc., 494 U.S. 545, 552-53 (1990); see also Wiehoff v. GTE

Directories Corp., 61 F.3d 588, 595-96 (8th Cir. 1995). Gipson argues that

we must therefore vacate the district court's judgment for KAS on his Title

VII claims, as the Court did in Lytle, 494 U.S. at 555-56 & n.4. However,

Lytle involved related federal claims for legal and equitable relief under

42 U.S.C. § 1981 and Title VII. Here, Gipson has had his day in court on

all federal claims, and there is a strong federal interest in not

needlessly relitigating those claims. Gipson's right to jury trial on the

MHRA claim will be fully protected by denying KAS any collateral estoppel

benefit from the Title VII trial, precisely the way we handled a similar

situation in Perkins v. Spivey, 911 F.2d 22, 32, 37 (8th Cir. 1990), cert.

denied, 499 U.S. 920 (1991).

For the foregoing reasons, the judgment of the district court

dismissing Gipson's hostile work environment claim under the MHRA is

reversed and the case is remanded for further proceedings on that claim

consistent with this opinion. In all other respects, the judgment of the

district court is affirmed.

A true copy.

Attest:

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