George L. Gipson v. Kas Snacktime Co. ( 1996 )

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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. *
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Submitted: November 15, 1995
Filed: May 7, 1996
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Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
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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
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;
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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 post-
Charge 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
1
Title VII claims, the district court ruled in favor of KAS in a seventy-
five page Memorandum Opinion, finding that Brank was a demanding, abrasive
supervisor but that Brank's acrimonious relationship with
1
trial of his Title VII claims
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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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
2
Gipson does not appeal the dismissal of his retaliation
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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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
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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").3 We conclude that the Missouri Supreme
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
3
Gipson's reliance on Havens Realty Corp. v. Coleman, 455 U.S.
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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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.
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