1Regrettably, the Honorable John D. Kelly passed away on October 21, 1998.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1212

___________

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: September 25, 1998

Filed: March 12, 1999

___________

Before LOKEN, JOHN R. GIBSON, and KELLY,1 Circuit Judges.

___________

LOKEN, Circuit Judge.

In July 1991, George L. Gipson, an African-American, sued his employer,

KAS Snacktime Company (“KAS”), asserting claims of race discrimination in

employment in violation of Title VII and the Missouri Human Rights Act (“MHRA”),

Mo. Rev. Stat. §§ 213.010-213.095. Gipson’s claims were based upon the allegedly

racist conduct of his former supervisor, Rick Brank. The district court dismissed the
2The HONORABLE STEPHEN N. LIMBAUGH, United States District Judge

for the Eastern District of Missouri.

3We decided in Gipson I that damages for continuing employment

discrimination violations are limited to the relevant statute of limitations period,

based upon our unanimous en banc decision in Ashley v. Boyle’s Famous Corned

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MHRA claims as time-barred or not administratively exhausted. A bench trial

resulted in a judgment in KAS’s favor on the Title VII claims, based upon the court’s

finding that Gipson’s acrimonious relationship with Brank “was not due to racial

bias.” 

Gipson appealed. In an earlier decision, we affirmed all but the dismissal of

Gipson’s hostile work environment claim under the MHRA as time-barred. As to that

claim, because Gipson’s charge to the Missouri agency and his summary judgment

response to the court alleged continuing racial harassment by Brank until February

1991, well within the MHRA statute of limitations period, we reversed the dismissal

and remanded for further proceedings. Gipson v. KAS Snacktime Co., 83 F.3d 225,

229-30 (8th Cir. 1996) (“Gipson I”). On remand, at the conclusion of an unusual

evidentiary procedure urged by Gipson’s counsel, the district court2 granted KAS

judgment as a matter of law on this claim. Gipson again appeals. We affirm.

As relevant to this appeal, Gipson I established two ground rules for the

proceedings on remand: first, Gipson had sufficiently alleged a continuing hostile

work environment violation. That claim is not time-barred if the harassment

continued after July 27, 1989, when the two-year statute of limitations began to run.

Second, if Gipson proves a hostile work environment violation, he may only recover

damages incurred after July 27, 1989. See 83 F.3d at 229-30. On remand, both

parties made the district court’s task unnecessarily difficult, KAS by urging the court

to ignore the first part of this law of the case, and Gipson by urging the court to treat

the second part as implicitly overruled by later Eighth Circuit cases.3 The court
Beef Co., 66 F.3d 164 (8th Cir. 1995). In the district court and again on appeal,

Gipson argues this decision was implicitly overruled by Jenson v. Eveleth Taconite

Co., 130 F.3d 1287 (8th Cir. 1997), cert. denied, 118 S. Ct. 2370 (1998); Delph v. Dr.

Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349 (8th Cir. 1997); and Varner v.

National Super Markets, Inc., 94 F.3d 1209 (8th Cir. 1996), cert. denied, 117 S. Ct.

946 (1997). We have carefully reviewed those later decisions and conclude, not

surprisingly, that none addressed the damages question at issue in Ashley and Gipson

I. Eighth Circuit panels do not “overrule” one another and certainly do not act in

conflict with prior decisions of the court en banc. Until modified or overruled by the

court en banc, Ashley and Gipson I are the law of this Circuit (with the obvious

caveat that Gipson I involved a damages issue under Missouri law and therefore may

be affected by subsequent decisions of the Missouri Supreme Court). 

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instead kept the parties within the legal parameters of Gipson I, which resulted in the

following trial procedure.

On the eve of trial, KAS filed a motion in limine to exclude all of Gipson’s

evidence, complaining that Gipson was attempting to retry his entire case under the

guise of a hostile work environment claim. Gipson responded, in essence, that

everything relevant to his unsuccessful disparate treatment claims was also relevant

to his hostile work environment claim. The district court applied Gipson I in

resolving this issue. Noting that Gipson could only recover damages incurred after

July 27, 1989, but that evidence of racial harassment prior to July 1989 might be

relevant in proving that racial harassment occurred during the damage period, the

court ruled:

plaintiff will be restricted to that evidence which has some probative

value on the issue of whether Brank’s treatment of plaintiff was

motivated by a racially discriminatory attitude, and if so, whether

Brank’s discriminatory conduct was so severe or pervasive that it

created a work environment abusive to the plaintiff.
-4-

Five days later, after selecting a jury and further discussing these evidentiary issues

with counsel informally, the court put the results of these discussions on the record,

outside the jury’s presence. Reducing rather lengthy remarks to what is essential for

purposes of this appeal, the court stated:

The plaintiff, in order to show a continuing pattern of the creation

of the hostile work environment claim, want[s] to elicit evidence that

occurred before July the 27th, 1989.

It is the opinion of the Court, as we had discussed informally with

counsel off the record, that I think that could conceivably come in under

a so-called continuing violation doctrine, provided that there were clear

racial overtones.

* * * * *

Counsel for the plaintiff indicated that she felt that this restricted

her from presenting the case as she would prefer to present it, and that

as a result, if she did, in fact, present the evidence of the [one] incident,

that does have obvious clear racial overtones, that it would not be

sufficient, in and of itself, to show a continuing pattern.

* * * * *

We . . . discussed th[e] possibility [that counsel] could very easily

make the record on appeal simply by . . . an offer of proof as to what the

various testimony would be . . . so that could constitute a record which

could be subject to an ultimate appeal. . . . I’m a little concerned about

whether this will be an effective record for which the Appellate Court

could make a decision. . . . [But if] counsel feels we could do this . . .

and that we can develop a record that is appealable, and that is

something the Court of Appeals can, in fact, consider and make an

ultimate determination on, why, I am ready to do it. 
-5-

After further discussion both on and off the record, and at the urging of counsel for

Gipson, the court agreed to send the jury home for the day and to proceed by means

of an offer of proof by Gipson’s counsel of the evidence she intended to introduce at

trial. Counsel then offered to prove the following:

– At Gipson and Brank’s first meeting in July 1987, Brank refused to shake

hands, refused to acknowledge Gipson’s gift of a company jacket, and told Gipson

to “[f]ire the fat black guy that wears glasses, because he just doesn’t fit in around

here,” referring to Lionel Harris, the only black district sales manager. Told that

Harris was a top performer, Brank replied, “I don’t care, I want him fired.”

– In August 1987, Brank threatened to fire Gipson if he ever walked in front

of him into a store. Later that month, Brank accused Gipson of not returning a

telephone call, threatened to rip his head off, and advised Gipson to look for another

job. One morning when Gipson arrived at work, Brank demanded to know where he

had been, commenting that he should “rip [Gipson’s] head off, and if it was ten years

ago, I would do it.”

– In the fall of 1987, Brank rejected Gipson’s recommendation of a pay

increase for Lionel Harris, commenting that Harris was “not going to get a raise as

long as I’m here,” and that it was “personal.” Around that time, Brank gave Gipson

an unfair performance appraisal, said he’d be reevaluated in 90 days, and began to

issue unwarranted or untrue written reprimands. When Gipson asked Brank for a

performance review at the end of the 90 days, Brank refused and threatened to fire

him. 

– In October 1987, during an acrimonious exchange about coffee in the office,

Brank threatened “to rip [Gipson’s] head off” and called him a “dumb nigger.” 

– In February 1988, Gipson complained to KAS’s Director of Human

Resources, Charles Kester, about Brank’s abusive treatment. In a subsequent
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meeting with KAS officials and Brank, Gipson accused Brank of racial discrimination

and asked KAS to investigate. Characterizing the conflict as a communications

problem, the KAS officials declined to investigate and asked Brank and Gipson to put

their differences behind them. In June 1988, Brank’s supervisor told Gipson: “I don’t

want to hear anything about discrimination, don’t talk to me about it.”

 

– Brank belittled and criticized Gipson for trivial matters in front of

subordinate managers. During a 1988 meeting with district sales managers, Brank

accused Gipson of not making eye contact with him and threatened to “slap the hell

out of” him and fire him if this persisted. 

– In the fall of 1988, Brank put Gipson on probation and advised him several

times to quit. Brank warned Gipson that if KAS had to fire him, they would make

sure he’d never work in the industry again. In February 1989, Brank told Gipson he

had survived the probationary period but was not off the hook. 

– In January 1989, Gipson again asked Kester to investigate Brank’s racial

discrimination. Kester declined to take action. Brank later told Gipson that Kester

had told Brank about the meeting, and nothing would save Gipson.

– In March 1989, Gipson was demoted from regional sales manager to district

sales manager and assigned to a rural sales territory far from his home. 

– In November 1990, Gipson’s new supervisor, regional sales manager Ralph

Marler, gave Gipson an unfair written reprimand. 

– During a December 1990 business outing (not otherwise described), Brank

told Gipson to quit because KAS didn’t need his “kind.” 
-7-

– In January 1991, Gipson was reassigned to the St. Louis office while Brank

was on vacation. When Brank returned, he told Gipson, “ If you say one negative

thing, you’ll be fired.” When Gipson replied that he wanted to be treated with

respect, Brank suspended him and ordered him off the company premises. Two days

later, “someone else” told Gipson to return to work. Brank left KAS shortly

thereafter.

After hearing Gipson’s offer of proof and the arguments of counsel, the district

court concluded the October 1987 coffee incident in which Brank allegedly made “an

extremely offensive racial comment” to Gipson is admissible evidence of continuing

racial harassment, but Gipson has no evidence of racial harassment occurring after

July 27, 1989, and therefore Gipson could not “make a submissible case to the jury

showing a continuing pattern of racial harassment sufficient to make [his] workplace

hostile.” The court entered judgment for KAS. Gipson did not object to this trial

procedure. On appeal, he asks us to reverse the adverse judgment, overrule Gipson

I, and rule that his punitive and emotional distress damage claims should be submitted

to a jury. 

II.

Gipson argues his offer of proof contained sufficient evidence for a jury to find

that KAS committed a continuing violation of the MHRA by maintaining a racially

hostile work environment. The MHRA prohibits an employer from “discriminat[ing]

against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race.” Mo. Rev. Stat. §

213.055. In applying the MHRA, we “are guided not only by Missouri law but also

by federal employment discrimination decisions which are applicable and

authoritative under the MHRA." Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671

(8th Cir. 1994) (quotation omitted); see Swyers v. Thermal Science, Inc., 887 S.W.2d

655, 656 (Mo. App.1994). 
-8-

An employer violates Title VII if “the workplace is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive

to alter the conditions of the victim’s employment and create an abusive working

environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citations

omitted). The same standards are generally used to evaluate claims of hostile work

environment based upon sexual harassment and racial harassment. See Faragher v.

City of Boca Raton, 118 S. Ct. 2275, 2283 n.1 (1998); Meritor Sav. Bank v. Vinson,

477 U.S. 57, 66-67 (1986). In determining whether a workplace environment was

sufficiently hostile or abusive, we look at the totality of 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.” Harris, 510 U.S. at 23. See White

v. Honeywell, Inc., 141 F.3d 1270, 1275 (8th Cir. 1998). 

When an employer is accused of a continuing violation that began prior to the

statute of limitations period, such as a racially discriminatory hostile work

environment, the employee must prove that the violation continued into the

limitations period; “the critical question is whether any present violation exists.”

United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (emphasis in original); see

Ashley, 66 F.3d at 167-68. Therefore, to avoid the claim being time-barred, Gipson’s

offer of proof must be sufficient to show that after July 27, 1989, he was a victim of

intimidation, ridicule, and insult on account of his race that was sufficiently severe

or pervasive to alter the conditions of his employment. We therefore look first at

Gipson’s offer of proof concerning his work environment after July 27, 1989. 

In March 1989, Gipson was demoted to district sales manager and transferred

from the St. Louis office to a rural sales route. This took him out from under Brank’s

direct supervision. Gipson’s offer of proof ignored the period from March 1989 to

November 1990, except to complain he was forced to work in a rural area far from his

home. There is no evidence Gipson had any contact with Brank from the time of the
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demotion until December 1990. Thus, Gipson presented no evidence of a hostile

work environment from July 1989 to late 1990, the first sixteen or seventeen months

of the limitations period.

Gipson’s offer of proof included only three alleged instances of racial

harassment in the limitations period. In November 1990, he received a written

reprimand containing “incorrect facts” from Marler, who reported to Brank but was

not accused of racial animus. In December 1990, Brank made an offensive and

racially-tinged comment (“your kind”) at some sort of business outing. In January

1991, Gipson was reassigned to St. Louis and had an unpleasant run-in with Brank

shortly thereafter. Brank then left KAS in February 1991. We conclude this

evidence, standing alone, is insufficient to establish an actionable hostile work

environment. 

Marler’s work-related reprimand was neither racial nor harassment. Brank’s

comments in December 1990 and January 1991, and his peremptory suspension of

Gipson, might well permit an inference of racial animus, particularly when viewed

in the context of Brank’s more explicitly racial comments prior to July 1989.

Compare Delph, 130 F.3d at 356-57. However, viewed under the totality of the postJuly 1989 circumstances, these two incidents are neither severe nor pervasive enough

to create a hostile work environment. The Supreme Court has repeatedly emphasized

that this cause of action is limited to extreme work conditions. See Faragher, 118 S.

Ct. at 2284 (“conduct must be extreme to amount to a change in the terms and

conditions of employment”); Oncale v. Sundowner Offshore Serv., Inc., 118 S. Ct.

998, 1003 (1998), and cases cited. “Conduct that is not severe or pervasive enough

to create an objectively hostile or abusive work environment -- an environment that

a reasonable person would find hostile or abusive” -- is not actionable. Harris, 510

U.S. at 21. 
-10-

Likewise, our cases upholding hostile work environment liability have

invariably presented far more hostile or abusive circumstances. See, e.g., Bailey v.

Runyon, No. 98-1030, slip op. at 6-7 (8th Cir. Feb. 8, 1999) (repeated unwelcome

sexual advances); Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997)

(physical sexual overtures followed by eight months of intimidating snickers); Delph,

130 F.3d at 352 (intimidation plus “a steady barrage of racial name-calling”); Ways

v. City of Lincoln, 871 F.2d 750, 755 (8th Cir. 1989) (evidence included fifty

examples of racial harassment); Hall v. Gus Constr. Co., 842 F.2d 1010, 1012 (8th

Cir. 1988) (incessant verbal abuse and offensive physical touching); Gilbert v. City

of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1983) (“more than a few isolated

incidents of harassment must have occurred”), cert. denied, 466 U.S. 972 (1984).

Brank’s alleged behavior in December 1990 and January 1991, though undeniably

offensive and rude, was not so severe that a reasonable person would find the terms

or conditions of Gipson’s work environment had been altered. 

Most of Gipson’s offer of proof related to Brank’s alleged conduct prior to July

1989. In proving a claim of hostile work environment, background evidence from the

pre-limitations period may be relevant to illuminate whether the plaintiff’s work

environment during the limitations period was sufficiently hostile or abusive. But

here, there was a twenty-one month period from March 1989 to December 1990 in

which there was no alleged contact between Gipson and Brank. A complete break of

this magnitude precludes a finding that a racially hostile work environment existing

at the time of Gipson’s demotion by reason of Brank’s harassment continued

unabated until Gipson was transferred back to the St. Louis office. See Garrison v.

Burke, 1999 WL 13515 at *5 (7th Cir. Jan. 14 1999) (two year respite from

harassment precludes finding of continuing violation); Konstantopoulos v. Westvaco

Corp., 112 F.3d 710, 716 (3d Cir. 1997) (seven month gap between harassing

incidents allowed “effects of prior incidents to dissipate”), cert. denied, 118 S. Ct.

1079 (1998). Thus, as the district court perceived, this evidence was not relevant to
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the question whether Gipson was the victim of a hostile work environment after

November 1990.

Because Gipson failed to prove a hostile work environment at any time after

July 27, 1989, this MHRA claim is time-barred, without regard to whether Gipson’s

offer of proof was sufficient to support an inference that Brank’s conduct was, in

general, motivated by racial bias. As to this latter question, the district court may

well have applied an unduly restrictive test in excluding pre-limitations period

evidence because it lacked “clear racial overtones.” In addition to Brank’s racially

offensive comment in October 1987, some of his other alleged conduct, such as his

treatment of Gipson the first day they met in July 1987, seems relevant in proving that

his continuing conduct toward Gipson was racially motivated. But absent evidence

of a hostile work environment violation in the limitations period, any such evidentiary

errors were obviously harmless.

The judgment of the district court is affirmed. Because we affirm the district

court’s judgment of dismissal, we need not reach the punitive damages and emotional

distress damages issues raised by Gipson on appeal. 

A true copy.

Attest:

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