___________ No. 95-1245

___________ 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 KA S 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 distric t 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 wor k
env ironment claim that is not time-barred. Accordingly, we reverse an d 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 hire d Rick Brank as Gipson's immediate supervisor. The next

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month, Borden, Inc., acquired KAS. Gipson's emp loyment fortunes declined, culm inating in his demotion to District Sales Manager in March 1989

. Gipson blames this on an atrocious working relationship with Brank caused by Br ank's racial bigotry. KAS denies race discrimination in it s workplace.

In Jul y 1989, following his demotion, Gipson filed a Charge o f Discrimination with the Missouri Commission on Human Rights ("MCHR") and the Equal Employment Opportunity Commission ("EE OC"). On the Charge form, Gipson checked the box alleging race discrimination and stated in th e "particulars" section of the form:

I was continually harassed by my immediate supervisor in that I wa s reprimanded, rated unfairly, placed on probation an d performance programs, subjected to different terms an d conditions of employment from a White Regional Manager, an d finally demoted.
Gipson attached a three-page supporting affidavit detailing unfai r treat ment by supervisor Brank and the failure of various KAS vic e presidents to act on Gipson's complaints against Brank.

Brank left KAS in February 1991. Gipson received right-to-su e letters from the MCHR and the EEOC in mid-1991. He commenced this action
on Jul y 27, 1991, asserting race discrimination and retaliation claim s under the MHRA and Title VII. Gipson alleged a continuing course o f 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 th e enactment of 42 U.S.C. § 1981a(c). See Landgraf v. USI Film Prods. , 114 S. Ct. 1483 (1994). -3- -- threats of physical injury; -- racial name-calling; -- denied promotions;

-- discri minatory 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 th e MH RA claims, arguing that most are barred by the MHRA statute o f limita tions, and the rest were not included in Gipson's administrativ e Charge. In response, Gipson argued that all his claims are timely under the "c ontinuing violation" doctrine, and that his allegations of post

Charge violations must be deemed exhausted because they are reasonabl y related to the allega tions in his Charge. Gipson attached to his summary judgme nt memorandum an interrogatory answer containing a six-pag e chronology of KAS's a lleged discriminatory actions from July 14, 1987, to January 8, 1991, just before Brank departed.

The dist rict court dismissed the MHRA claims. The court conclude d (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 reasonabl y related to the violat ions 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 retaliatio n 2 

### claims because they were not i ncluded in the Charge. See Williams v. Little Rock Mun. Water Works , 21 F.3d 218, 222-23 (8th Cir

. 1994). -4- Gipson "was not due t o racial bias." Gipson v. KAS Snacktime Co. , 874 F. Supp. 1556 (E.D. Mo. 1994). This appeal followed. 2

II. MHRA Claims.

The MH RA requires that claimants exhaust their administrativ e remedies by filing a charge of discrimination within 180 days after "the alleg ed 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, th e claimant may sue within ninety days of the agency's right-to-sue letter bu t "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 re quirements 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 occurr ed." Boge v. Ringland-Johnson-Crowley Co. , 976 F.2d 448, 451 (8th Cir. 1992). The time for filing a n administrative charge or commencing a lawsuit runs from the date of such a discriminatory act, even if its ef fects 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." Delawar e 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 cha rge is the legal equivalent of a discriminatory act whic h occ urred before the statute was passed. It may constitut e relevan t background evidence in a proceeding in which th e sta tus of a current practice is at issue, but separatel y 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 favorabl y in Missouri Pac. R.R. , 606 S.W.2d at 501.
Applying this principle, we agree with the district court tha t Gipson's challenges to discrete, adverse employment actions are time-barre d 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 discriminator y demotion and assignment to a rural sales territory is barred because these actions occurred in March 1989, more than two year s before he filed this lawsuit. The claim for denied promotions was properl y dismissed because Gipson's summary judgment subm ission provided no factual support for this claim.

On th e other hand, Gipson also pleaded a hostile work environmen t claim, alleging that he was the victim of continuing racial harassment by Brank. To be properl y exhausted, that claim must be separately raised in the administrative charge, because it is not rea sonably 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. 199 4). Here, Gipson's Charge and supporting affidavit -- which we must read liberally, Williams , 21 F.3 d at 223 -- clearly all eged 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).

### -6- A hostile work environment is an ongoing nightmare for the employee victi m, in legal parlance, a "continuing violation." For this type o f vio lation, the statute of limitations runs from "the last occurrence o f discrimination." Hukkanen v. International Union of Operating Eng'rs Loca l 101 , 3 F.3d 281, 285 (8th Cir. 1993). "[T]he cr itical 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 i n original). In his Charge of Discrimination, Gipson alleged that he ha d been " continually harassed by my immediate supervisor." Because thi s allegation is suffici ent to plead a hostile work environment violation on the date of his Charge, July 31, 1989, that clai m was not time-barred when he commenced this act ion on July 27, 1991, less than two years later. In addition, Gipson's complaint and summary judgment response alleged tha t KAS's racial harassment continued until Brank le ft the company in February 1991. These post-Cha rge allegations are reasonably related to the racial harassment portion of the Charge and therefore must be deemed exhausted. See Ander son 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 cour t erred in dismissing Gipson's hostile work environment claim under the MHRA

.

Gipson further argues that, if he proves a pattern of racia l harassment constituting a hostile work environme nt, 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 o f Discrimination, or more than two years before he filed this lawsuit. We disagree. This argument was rejected in our recent en banc decision i n Ashley , 66 F.3d at 167-68:

When an employer is accused of an ongoing practice that began pri or to the statute of limitations period, the claim ma y nonetheless be timely under the "continuing violation " do ctrine. The employee may challenge ongoing discriminator y 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, no t the extent of damage liability. Consistent with the rule w e adopte d in Ashley , the Supreme Court in Havens upheld plaintif f Coleman's standing to challenge a continuing discriminator y practice, but dismissed her damage claims for acts prior to th e applicable 180-day statute of limitations. 455 U.S. at 380-82.
-7- hav e been challenged earlier and are thus time-barred

.

. . . Re lief back to the beginning of the limitations perio d strikes a reasonable balance between permitting redress of an ongoing wrong and imposing liability for conduct long past.
(Empha sis added; citations omitted); accord Knight v. Columbus , 19 F.3 d 579, 581 (11th Cir. 1994) ("Where a continuing violation is found, th e plaintif fs can recover for any violations for which the statute o f limitations has not expired"). We conclude that the Missouri Suprem e 3 Court would apply thi s 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 ma y recover damages incurred after July 27, 1989.
III. The Jury Trial Issue.
Gipson argues that, on remand, he ha s a right to a jury trial of his MHRA hostile work environment claim, an issue we have not previousl y 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 jur y trial provision in the prior statute, and the Governor vetoed a bill addin g 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; an d that the "main thrust of relief [under the MHRA] is equitable in nature," with damages allowed only "to allow a party ful l 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 i n federal court is a question of federal law, even when the federal court is enfo rcing state-created rights and obligations, see Simler v. Conner , 372 U.S. 221, 222 (1963) (pe r curiam), indeed, even when a state statute or state constitution woul d 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 p reserves the right to jury trial in federal court "[i]n Suits at common law," federal law focuses upo n whether a claim is le gal 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 leas t in part a legal remedy. Curtis , 415 U.S. at 194 . The MHRA authorizes the
recove ry of "actual and punitive damages," in addition to equitabl e remedies such as backpay. Mo. Rev. Stat. § 213.111(2). Therefore, w e agre e with the Eastern District of Missouri decisions holding that a plaintiff seeking damages under the MHRA is entitled to a jury trial i n 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).

### -9- When the district court has erroneously dismissed a claim to whic h the right to jury trial applies and has also tried another claim raising the same or related issues to the court, the pla intiff's Seventh Amendment right requires that t he 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 tha t
we must therefore vacate the district court's judgment for KAS on his Titl e 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 fede ral claims, and there is a strong federal interest in no t needlessly relitigating those claims. Gipson's right to jury trial on the MHRA claim will be fu lly 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 cour t dismis sing Gipson's hostile work environment claim under the MHRA i s reversed and the case is remanded for further proceedings on that clai m 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.