United States Court of Appeals

For the Eighth Circuit

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No. 12-3207

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Rachel Clay

lllllllllllllllllllll Plaintiff - Appellant

v.

Credit Bureau Enterprises, Inc.

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Northern District of Iowa, Waterloo

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 Submitted: December 19, 2013

 Filed: June 6, 2014

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Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

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WOLLMAN, Circuit Judge.

Rachel Clay brought suit against her employer, Credit Bureau Enterprises, Inc.

(CBE), under 42 U.S.C. § 1981, alleging claims of race discrimination, hostile work
environment, retaliation, and constructive discharge. We affirm the district court’s1

grant of summary judgment in favor of CBE on each of Clay’s claims. 

I. Background

CBE is an Iowa corporation that performs debt-collection services for various

industries and organizations. Clay is an African-American female. She began

working for CBE in March 2005 as a front line collector. Shortly thereafter, she 

transferred to the position of partial payment administration collector and then to the

position of quality control administrative representative. Clay alleged that she had

applied for five promotions at CBE from January 2006 to January 2007, but that CBE

did not hire her to fill any of those positions. 

CBE employees were subject to four different levels of disciplinary action:

coaching, verbal warning, written warning, and suspension. From March 2005 until

Clay resigned for “personal reasons” on February 5, 2008, Clay received six

coachings and one verbal warning. CBE’s records show that Clay was not formally

disciplined during the year preceding her resignation.

Clay filed this action on March 1, 2011. Because claims brought under § 1981

are subject to a four-year statute of limitations, see Jones v. R.R. Donnelley & Sons

Co., 541 U.S. 369, 382-83 (2004), Clay’s claims must have arisen on or after March

1, 2007, in order to be timely. 

1

The Honorable Jon Stuart Scoles, Chief United States Magistrate Judge for the

Northern District of Iowa, to whom the case was submitted by consent of the parties

pursuant to 28 U.S.C. § 636(c). 

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In support of her hostile work environment claim, Clay cited more than thirty

incidents, twelve of which occurred within the limitations period. Clay alleged that

the following twelve incidents occurred after March 1, 2007:

• On March 12, 2007, Supervisor Kim Selberg said that she would

deny Clay’s request to make up time unless Clay completed a form

that white employees had not been required to complete.

• On March 15, 2007, Manager Deahonne Teal disciplined Clay for a

dress code violation. Similarly dressed white employees were not

disciplined. 

• At the end of March 2007, Clay complained to Selberg that her white

co-workers received praise for their performance but Clay did not

receive similar praise. 

• On April 6, 2007, Selberg improperly altered Clay’s time log to

reflect that Clay had returned late from lunch.

• In late April 2007, a co-worker told Clay, “Congratulations! Today

is the day Abraham Lincoln freed the slaves. You should be happy.”

Teal overheard the comment but took no action. 

• At the end of April 2007, Teal refused to allow Clay to take dock

time in order to care for her children on two occasions. Teal had

allowed white employees to do so.

• After Clay graduated from team lead training course on July 17,

2007, CBE did not promote her to any team lead positions.

• On August 7, 2007, Teal disciplined Clay for an error Clay had made

while training for a new collection process. White employees were

not disciplined for similar errors. 

• On August 14, 2007, Supervisor Sara Knoll disciplined Clay for

making a mail delivery error. Most CBE employees had made the

same error and were not disciplined.

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• In November 2007, Teal allowed Clay to adjust her schedule to

accommodate her child-care needs, but lectured Clay before

approving the accommodation. 

• In November 2007, Clay worked late. The next day, Teal told Clay,

“You know there’s a camera right behind your desk, right? So don’t

be taking anything off anyone’s desk when I leave.” Teal then

changed CBE’s policy to preclude employees from working late.

• On January 14, 2008, Vice President of Human Resources Mary

Phillips repeatedly called Clay’s residence and accused Clay of lying

about her need for Family and Medical Leave Act (FMLA) leave,

which was something Phillips did not do to white employees. 

As set forth above, CBE did not record any instances of discipline during the

limitations period. 

The remaining incidents all occurred before March 1, 2007, and thus fell

outside the limitations period. The majority of these incidents involved situations in

which Clay alleged that she was treated differently than her white co-workers, either

by being disciplined more harshly, by being passed over for promotions despite her

qualifications, or by being denied other types of preferential treatment that white

employees enjoyed. For example, Clay alleged that she received a coaching from Teal

in February 2006 for wearing a pair of pants that Teal believed violated CBE’s dress

code. According to Clay, one of her white co-workers wore the same pants without

being disciplined. Additionally, Clay alleged that on December 6, 2006, Phillips

called Clay and implied that Clay was lying about her need for FMLA leave. Clay

contended that Phillips did not question white employees who took FMLA leave.

The other pre-March 1, 2007, incidents involved situations in which Clay

alleged that her white co-workers and supervisors made racially derogatory comments

to her and other African-American employees at CBE. Specifically, Clay alleged (1)

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that in May 2006, she learned that Supervisor Dave Fisher called African-American

Supervisor Sabrina Lowry a “black bitch” during an argument; (2) that she learned

that Supervisor Tami Barts once told Lowry to “let up on the white girls”; (3) that

Supervisor Scott Swonger overheard Clay’s co-worker call her a “black bitch” during

a dispute, but did not report it; (4) that Supervisor Teresa Mendenhall referred to

Clay’s hair as “nappy”; and (5) that she had knowledge that Supervisors Kim Postal

and Jay Bracken commented that “black people had nappy hair,” “black people live

in the hood,” and “black people get food stamps.”

Clay relied on many of these thirty-plus incidents to support her race

discrimination, retaliation, and constructive discharge claims. The district court

granted CBE’s motion for summary judgment on each of the four claims, holding that

they were time barred. The district court further concluded that the claims were

without merit and thus would have failed even if they had been timely.

II. Discussion

We review the district court’s grant of summary judgment de novo, viewing the

evidence in the light most favorable to the nonmoving party. Malone v. Ameren UE,

646 F.3d 512, 516 (8th Cir. 2011). We will affirm the district court’s grant of

summary judgment if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To survive

a motion for summary judgment, the nonmoving party must ‘substantiate h[er]

allegations with sufficient probative evidence [that] would permit a finding in [her]

favor based on more than mere speculation, conjecture, or fantasy.’” Putman v. Unity

Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003) (second alteration in original)

(quoting Wilson v. Int’l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)). 

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A. Hostile Work Environment

Clay argues that the district court erred in granting summary judgment to CBE

on her hostile work environment claim. She contends that summary judgment was

improper because genuine issues of material fact exist with regard to this claim. To

address this argument, we must first decide whether we can consider the incidents that

occurred before March 1, 2007, in evaluating the hostile work environment claim.

In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002), the

United States Supreme Court considered “whether, and under what circumstances, a

Title VII plaintiff may file suit on events that fall outside th[e] statutory time period.”2

The Court explained that “[a] hostile work environment claim is composed of a series

of separate acts that collectively constitute one ‘unlawful employment practice.’” Id.

at 117. The Court thus held that a hostile work environment claim “will not be time

barred so long as all acts which constitute the claim are part of the same unlawful

employment practice and at least one act falls within the time period.”3

 Id. at 122. 

The Court indicated that acts may be part of the same unlawful employment practice

2

Although Morgan was decided in the context of Title VII claims, we have

applied the principles discussed in Morgan to claims brought pursuant to § 1981. See

Madison v. IBP, Inc., 330 F.3d 1051, 1061 (8th Cir. 2003) (“Because § 1981 allows

for recovery for the same type of employment discrimination as Title VII, we believe

that the distinction between discrete acts and hostile work environment claims should

have equal effect on the respective recovery periods for the two statutes.”).

3

In Morgan, the Court distinguished claims for discrete acts (such as

termination, failure to promote, or refusal to hire) from claims for hostile work

environments. 536 U.S. at 114-15. Although Morgan makes clear that time-barred

discrete acts are not independently actionable, id. at 113, Morgan does not address

whether such acts still can be considered as part of a hostile work environment claim. 

We need not decide this issue, however, because, as addressed later in this opinion,

Clay’s hostile work environment claim cannot survive summary judgment even if the

relevant pre-March 1, 2007, discrete acts Clay cites are considered.

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if they “involve[] the same type of employment actions, occurred relatively frequently,

and were perpetrated by the same managers.” Id. at 120. If, however, the prelimitations period acts have no relation to the acts within the limitations period, “or

for some other reason, such as certain intervening action by the employer, [the acts

are] no longer part of the same hostile environment claim, then the employee cannot

recover for the previous acts.” Id. at 118. 

In Rowe v. Hussmann Corp., 381 F.3d 775, 779 (8th Cir. 2004), we considered

whether acts of sexual roguery that occurred before the limitations period were “part

of the same actionable hostile work environment practice” as the acts that occurred

within the limitations period. A comparison of the acts revealed that “it was the same

harasser . . . committing the same harassing acts” both before and within the

limitations period, that the employer was made aware of the harassment, and that there

was no evidence of an “intervening action.” Id. at 781. We thus held “as a matter of

law that the acts before and after the limitations period were so similar in nature,

frequency, and severity that they must be considered to be part and parcel of the

hostile work environment that constituted the unlawful employment practice that gave

rise to this action.” Id.

Clay argues that all of the thirty-plus incidents described above are part of the

same unlawful employment practice and thus the district court should have considered

the acts that occurred before March 1, 2007. Most of those incidents, however, were

not similar in “nature, frequency, and severity” to the incidents that occurred within

the limitations period, in that different supervisors engaged in different types of

alleged discriminatory acts. Even considering the otherwise time-barred acts that were

similar to the acts that occurred within the limitations period—such as Teal

disciplining Clay for a dress code violation and Phillips questioning Clay about

FMLA leave—Clay has not set forth sufficient evidence to survive summary judgment

on her hostile work environment claim.

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To establish a claim for hostile work environment based on race, an employee

must prove that “(1) [s]he is a member of a protected group; (2) [s]he was subject to

unwelcome race-based harassment; (3) the harassment was because of membership

in the protected group; and (4) the harassment affected a term, condition, or privilege

of employment.” Malone, 646 F.3d at 517. Moreover, if an employee’s hostile work

environment claim is based on harassment by non-supervisory co-workers, the

employee must also prove that the employer “knew or should have known of the

harassment and failed to take proper remedial action.” Id. (quoting Tatum v. City of

Berkeley, 408 F.3d 543, 550 (8th Cir. 2005)).

In order for harassment to have affected a term, condition, or privilege of

employment, the harassment must have been “sufficiently severe or pervasive to alter

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

environment.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). 

Consideration of this element of a hostile work environment claim “includes both

objective and subjective components: an environment that a reasonable person would

find hostile and one that the victim actually perceived as abusive.” Duncan v. Gen.

Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002). “To decide whether a work

environment is objectively offensive, . . . we examine 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 the conduct

unreasonably interfered with the employee’s work performance.” Singletary v. Mo.

Dep’t of Corr., 423 F.3d 886, 892-93 (8th Cir. 2005) (quoting Bainbridge v. Loffredo

Gardens, Inc., 378 F.3d 756, 759 (8th Cir. 2004)). “A hostile work environment exists

when the workplace is dominated by racial slurs, but not when the offensive conduct

consists of offhand comments and isolated incidents.” Bainbridge, 378 F.3d at 759.

Taking the facts in the light most favorable to Clay, we conclude that she has

not set forth sufficient evidence to show that “the harassment affected a term,

condition, or privilege of her employment.” The twelve incidents of alleged

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harassment that occurred after March 1, 2007, as well as the similar acts that occurred

before then, taken together are not sufficiently severe or pervasive to show that Clay’s

work environment was objectively offensive. These incidents were infrequent and

involved low levels of severity. In addition, Clay has not alleged that the environment

was physically threatening, nor has she set forth evidence to show that the alleged

discriminatory conduct was humiliating or interfered with her work. A reasonable

person thus would not perceive Clay’s work environment as hostile.

Clay’s hostile work environment claim is also lacking in other respects. Most

of the acts Clay alleges constitute harassment do not involve the type of conduct that

usually gives rise to a hostile work environment claim. See Felton v. Polles, 315 F.3d

470, 485 (5th Cir. 2002), abrogated on other grounds by Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53 (2006) (concluding that the plaintiff’s allegations could not

constitute actionable harassment because he made no allegation of intimidation,

ridicule, or insult within the actionable time period and that his allegations were more

suited to his disparate treatment claim). Moreover, Clay has not supported her

allegations with sufficient probative evidence, and she relies mostly on speculation

and conjecture to show that the alleged harassment was race based. See Anda v.

Wickes Furniture Co., Inc., 517 F.3d 526, 531 (8th Cir. 2008) (“[T]he plaintiff ‘must

substantiate her allegations with sufficient probative evidence that would permit a

finding in her favor.’”); Palesch v. Mo. Comm’n on Human Rights, 233 F.3d 560,

567-68 (8th Cir. 2000). In light of the record, we conclude that the district court did

not err in granting summary judgment in favor of CBE. 

B. Constructive Discharge, Retaliation, and Discrimination

Clay argues that her claims of race discrimination, retaliation, and constructive

discharge should have survived summary judgment. Clay contends that the district

court erred in concluding that her race discrimination and retaliation claims were

untimely because it failed to consider certain discriminatory or retaliatory conduct that

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occurred after March 1, 2007. The district court, however, considered that conduct

in its order denying Clay’s post-judgment motions, and Clay has not set forth

sufficient evidence to show a genuine issue of material fact on those claims. 

Furthermore, Clay concedes that her constructive discharge claim “rises and falls on

[her] hostile environment claim.” Having affirmed the district court’s decision on the

hostile work environment claim, we need not further address Clay’s constructive

discharge claim. 

III. Conclusion

The judgment is affirmed. 

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