# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 12-3207

___________________________ Rachel Clay

lllllllllllllllllllll Plaintiff - Appellant

v. Credit Bureau Enterprises, Inc.

lllllllllllllllllllll Defendant - Appellee

____________ Appeal from United States District Court for the Northern District of Iowa, Waterloo

____________ Submitted: December 19, 2013 Filed: June 6, 2014

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

____________ WOLLMAN, Circuit Judge.

Rachel Clay brought suit against her empl oyer, Credit Bureau Enterprises, Inc. (CBE), under 42 U.S.C. § 1981, alleging clai ms of race discrimination, hostile workenvironment, retaliation, and constructive discharge. We affirm the district court’s 1 grant of summary judgment in favor of CBE on each of Clay’s claims.

I. Background

CBE is an Iowa corporation that perfo rms 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 paymen t administration collector and then to the position of quality control administrative repr esentative. Clay alleged that she had applied for five promotions at CBE fro m January 2006 to January 2007, but that CBE did not hire her to fill any of those positions.

CBE employees were subject to four di fferent levels of disciplinary action: coaching, verbal warning, written warni ng, 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 Cl ay 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).

-2-In support of her hostile work environmen t 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 Ki m 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, Mana ger Deahonne Teal disciplined Clay for a dress code violation. Similarl y 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 imprope rly altered Clay’s time log to reflect that Clay had returned late from lunch. • In late April 2007, a co-worker to ld 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 refu sed 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. Mo st CBE employees had made the same error and were not disciplined.

-3-• 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 de sk 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 re sidence 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 be fore 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 di fferently than her white co-workers, either by being disciplined more ha rshly, by being pa ssed over for promotions despite her qualifications, or by being de nied other types of preferential treatment that white employees enjoyed. For example, Clay alleged that sh e 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 th e same pants without being disciplined. Additionally, Clay alleged that on December 6, 2006, Phillips called Clay and implied that Clay was lyi ng 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, incident s involved situations in which Clay alleged that her white co-workers and supe rvisors made racially derogatory comments to her and other African-American employees at CBE. Specifically, Clay alleged (1)

-4-that in May 2006, she learned that Superv isor 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 “b lack bitch” during a dispute, but did not report it; (4) that Supervisor Teresa Mendenhall referred to Clay’s hair as “nappy”; and (5) that sh e 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 cl aims. 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 di spute 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 nonm oving party must ‘substantiate h[er] allegations with sufficient probative evidence [that] would permit a finding in [her] favor based on more than mere speculation, c onjecture, 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)).

-5-A. Hostile Work Environment

Clay argues that the district court e rred 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 canconsider the incidents that occurred before March 1, 2007, in evaluating the hostile work environment claim.

In National Railroad Pa ssenger 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 th at 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 constituteone ‘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 wh ich 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 Morganto 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 employm ent discrimination as Title VII, we believe that the distinction between discrete acts and hostile work environment claims should have equal effect on the respective rec overy periods for the two statutes.”).

3 In Morgan , the Court distinguished claims for discrete acts (such as termination, failure to promote, or re fusal 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.
-6-if they “involve[] the same type of empl oyment actions, occurred relatively frequently, and were perpetrated by th e same managers.” Id. at 120. If, however, the prelimitations period acts have no relation to th e acts within the limitations period, “or for some other reason, such as certain intervening acti on by the employer, [the acts are] no longer part of the same hostile e nvironment claim, then the employee cannot recover for the previous acts.” Id. at 118.

In Rowe v. Hussmann Corp. , 381 F.3d 775, 779 (8th Ci r. 2004), we considered whether acts of sexual roguery that occurre d before the limitations period were “part of the same actionable hostile work envir onment 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 harassi ng acts” both before and within the limitations period, that the employer was madeaware 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 c onsidered 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 in cidents 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, freque ncy, and severity” to the incidents that occurred within the limitations period, in that different supervisors engaged indifferent types of alleged discriminatory acts. Even consid ering the otherwise time-barred acts that were similar to the acts that occurred with in the limitations period—such as Teal disciplining Clay for a dress code vi olation and Phillips questioning Clay about FMLA leave—Clay has not set forth suffici ent evidence to survive summary judgment on her hostile work environment claim.

-7-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 harassmen t 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 empl oyer “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 affect ed a term, condition, or privilege of employment, the harassment must have been “s ufficiently severe or pervasive to alter the conditions of the victim’s empl oyment 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 e nvironment 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 conduc t, its severity, whether it is physically threatening or humiliating or a mere offe nsive 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 dominat ed 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 favorab le 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 employmen t.” The twelve incidents of alleged

-8-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. SeeFelton v. Polles , 315 F.3d 470, 485 (5th Cir. 2002), ab rogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006) (concluding that th e plaintiff’s allegations could not constitute actionable harassm ent because he made no allegation of intimidation, ridicule, or insult within the actionable tim e 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 alle ged harassment was race based. SeeAnda 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, re taliation, and constructive discharge should have survived summary judgm ent. Clay contends that the district court erred in concluding that her race discrimination and retaliation claims were untimely because it failed to consider certaindiscriminatory or retaliatory conduct that

-9-occurred after March 1, 2007. The district court, however, cons idered that conduct in its order denying Clay’s post-judgment motions, and Clay has not set forth sufficient evidence to show a genuine i ssue of material fact on those claims. Furthermore, Clay concedes that her constructive discharg e claim “rises and falls on [her] hostile environment claim.” Having affi rmed 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.

______________________________

-10-