                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3770
                         ___________________________

                                   Lauren M. Hales

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                            Casey’s Marketing Company

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                            Submitted: October 19, 2017
                               Filed: April 3, 2018
                                 ____________

Before WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG,1 Judge.
                         ____________

WOLLMAN, Circuit Judge.

      Lauren Hales sued her former employer, Casey’s Marketing Company
(Casey’s), for hostile work environment sexual harassment (hostile work
environment) and retaliatory termination in violation of Title VII of the Civil Rights


      1
       The Honorable Richard W. Goldberg, United States Court of International
Trade, sitting by designation.
Act of 1964, 42 U.S.C. § 2000e, et seq. (Title VII) and the Iowa Civil Rights Act
(ICRA), Iowa Code § 216.1, et seq. The district court dismissed the ICRA claim as
time-barred and rejected the Title VII claims on summary judgment. It also excluded
evidence of previous sexual assaults and expert testimony. We affirm.

      Eighteen-year-old Hales was employed at Casey’s Summer Street store in
Burlington, Iowa, from April 9, 2013, through May 31, 2013. On May 28-29, 2013,
Hales worked the 9:00 p.m to 5:00 a.m. shift at Casey’s West Avenue store, also
located in Burlington, Iowa. This was her second time working at this location.

       At approximately 1:44 a.m. on May 29, a male customer entered Casey’s West
Avenue store, where he stayed for approximately twenty-two minutes. Hales had
never met this customer before. The customer purchased some items and began
speaking with Hales, asking her if she had a boyfriend and if she worked at the West
Avenue location often. He also made comments about her appearance. The customer
told Hales about where he lived, where he worked, what kind of vehicle he drove, that
there was a dashboard camera on his vehicle, and, using a sexually suggestive tone,
that he liked to film things.

       In an attempt to “elude” the customer, Hales decided that she was going to go
outside to smoke a cigarette. She asked a co-worker to keep an eye on her because
a customer had been “hitting on her.” The co-worker asked Hales why she was going
outside if the customer was still in the store and suggested that Hales should just ask
him to leave. Hales responded that she could take care of herself.

      The customer followed Hales outside and blocked the entrance to the store.
Hales asserts that after the customer said that “his girlfriend calls him when it’s
raining outside to tell [him] how wet she is, [but that] that’s his job,” Hales told him
to “back off.” The customer replied, “What are you going to do about it?” In
response, Hales extended her cigarette towards the customer in an attempt to make

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him move away. The customer instead stepped toward Hales and burned his left arm
on her cigarette. The customer recoiled and then reentered the store, followed by
Hales.

      The customer returned to the Casey’s West Avenue store the next day and
reported that Hales had burned him with a cigarette. The West Avenue manager
thereafter reviewed the surveillance tapes, and informed the Summer Street location
manager about the incident between Hales and the customer.

      When Hales reported for her next shift at Casey’s Summer Street store on May
31, 2013, her manager asked her if “anything out of the ordinary had happened” while
working at the West Avenue store. Hales acknowledged that she had burned a
customer with her cigarette, but stated that she did so in order to defend herself. The
manager thereupon terminated Hales’s employment.

       On June 27, 2013, and February 10, 2014, Hales filed a complaint with the
Iowa Civil Rights Commission (ICRC), arguing that her termination was based on
discrimination and in retaliation for resisting sexual harassment. The complaint was
cross-filed with the Equal Employment Opportunity Commission (EEOC). On June
1, 2014, Hales requested separate administrative releases from the ICRC and the
EEOC. The ICRC issued Hales an administrative release letter on her ICRA
complaint on June 4, 2014. The EEOC mailed Hales a Dismissal and Notice of
Rights on her retaliation claim on September 24, 2014. It mailed Hales a Dismissal
and Notice of Rights on her hostile work environment claim on October 8, 2014,
which she received on October 13, 2014. The EEOC’s letters stated that a lawsuit
“must be filed WITHIN 90 DAYS of your receipt of this notice, or your right to
sue based on this charge will be lost.” (emphasis in original). The EEOC sent copies
of the letter to James Hales (Mr. Hales), who is Hales’s father as well as her attorney.




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Both sets of letters were sent to the same residential address, because Hales lived
there with her father from June 2014 to September 2014.2

        Hales filed suit in federal district court on January 7, 2015. Casey’s moved to
dismiss under Rule 12(b)(6) arguing that Hales’s ICRA claim was time-barred
because it was filed outside the statutory filing period. See Iowa Code § 216.16(4)
(stating that “an action . . . is barred unless commenced within ninety days after
issuance by the commission of a release”). Hales argued that the limitation period
should apply only to parties who wish to have their claim resolved in state court. She
also argued that her claim should not be time-barred because the EEOC did not issue
its letter until after the state court filing deadline had expired. The district court
disagreed and granted Casey’s motion to dismiss on the ICRA claim.

      Hales sought to introduce evidence that she had previously been sexually
assaulted, along with testimony from her counselor that Hales had been undergoing
therapy in order to learn to have a voice and be “empowered” to resist sexual assaults.
The district court granted Casey’s motion in limine and motion to exclude expert
opinion and testimony, concluding that evidence of Hales’s previous sexual assaults
was not relevant to her hostile work environment and retaliation claims.

      Thereafter, Casey’s moved for summary judgment. The district court
determined that the hostile work environment claim failed as a matter of law because
Hales did not show “severe or pervasive harassment affecting a term or condition of
her employment.” Hales v. Casey’s Mktg. Co., No. 3:15-CV-00004-RGE, at 19
(Aug. 17, 2016). The court also concluded that in light of the circumstances, Casey’s
was not liable for the customer’s conduct. Hales argued that the customer’s conduct
should be imputed to Casey’s because Casey’s had knowledge of the customer’s
previous inappropriate conduct and had failed to take remedial action. The district


      2
          Mr. Hales was using his address as both a private residence and a law office.

                                           -4-
court disagreed, concluding that upon receiving a previous report that this same
customer had made sexual comments to female employees, Casey’s took “reasonable
action” by having a male employee warn the customer that if he continued to bother
the employees, the police would be called and he would be banned from the store.
Id. at 12.

       The court also determined that Hales’s retaliation claim failed both
procedurally and on the merits. Procedurally, the court ruled that the claim was time-
barred because it was filed outside the EEOC’s ninety-day limitation period and Hales
had failed to establish any reason why the limitation period should be tolled. The
court further concluded that Hales’s retaliation claim would fail on the merits because
she was not engaged in activity protected under Title VII.

                                          I.

                                  A. ICRA Claim

       Hales argues that the district court should have found Iowa’s ninety-day filing
period to be equitably tolled because the EEOC’s right-to-sue letter was not issued
until after the ICRA statutory filing period had expired. We review the grant of a
12(b)(6) motion to dismiss de novo. Schmedding v. Tnemec Co., Inc., 187 F.3d 862,
864 (8th Cir. 1999).

        Hales concedes that absent tolling, her ICRA claim was untimely filed. But she
argues that if the ICRA filing deadline is not equitably tolled during the pendency of
an EEOC review she would be estopped from bringing her federal claim in federal
court because both claims arose from a common nucleus of fact. The Supreme Court
rejected a similar argument in Johnson v. Railway Express Agency, Inc., holding that
the filing of a Title VII claim with the EEOC does not toll the statute of limitations
in an action arising under 42 U.S.C. § 1981 even though the claims arose out of the

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same nucleus of fact. 421 U.S. 454, 465 (1975). The Court explained that a plaintiff
should file suit and then “ask the court to stay proceedings until the administrative
efforts . . . and voluntary compliance have been completed.” Id. If, on the other
hand, a plaintiff has a right to file a § 1981 claim and fails to do so—even if “induced
by faith in the adequacy of his Title VII remedy”—that plaintiff has in effect “slept
on his § 1981 right[]” to file such claim, and the claim is consequently time-barred.
Id. at 466; see also Castagna v. Luceno, 744 F.3d 254, 258 (2d Cir. 2014) (holding
that “as a matter of federal law[,] filing an EEOC charge does not toll the time for
filing state tort claims, including those that arise out of the same nucleus of facts
alleged in the charge of discrimination filed with the EEOC”); Juarez v. Ameritech
Mobile Commc’ns, Inc., 957 F.2d 317, 323 (7th Cir. 1992) (stating that “the time for
filing [a state-law claim] is not tolled by the filing of a discrimination charge with the
EEOC.”); Arnold v. United States, 816 F.2d 1306, 1313 (9th Cir. 1987) (rejecting
argument that state-law claims should be tolled by filing a Title VII claim).

      Following the Supreme Court’s rationale in Johnson, we conclude that the
pendency of an EEOC review does not toll a state civil rights claim and that Hales’s
ICRA claim is thus time-barred. Because we hold that Hales’s retaliation claim is
time-barred, we need not address her evidentiary arguments regarding that claim.

                           B. Hostile Work Environment

      Hales argues that her hostile work environment claim should have survived
summary judgment because the customer’s conduct was severe enough to affect a
term or condition of her employment and because Casey’s failed to take sufficient
action despite its having knowledge of the customer’s behavior.

       We review the district court’s grant of summary judgment de novo. Henthorn
v. Capitol Commc’ns, Inc., 359 F.3d 1021, 1024 (8th Cir. 2004). Summary judgment
is proper if, when viewing the evidence in a light most favorable to the non-moving


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party, no genuine issue of material fact exists and the nonmoving party is entitled to
judgment as a matter of law. Id. at 1026. Mere allegations that are not supported by
specific facts are insufficient to establish a genuine issue of material fact and will not
withstand a summary judgment motion. Id.

       To prevail on a hostile work environment claim, a plaintiff must prove the
following five elements: (1) that she is a member of a protected group; (2) that she
was the subject of unwelcome sexual harassment; (3) that a causal nexus existed
between the harassment and protected group status; (4) that harassment affected a
term, condition, or privilege of employment; and (5) that her employer knew or
should have known of the harassment and failed to take prompt and effective
remedial action. Klein v. McGowan, 198 F.3d 705, 709 (8th Cir. 1999). The fourth
element includes both subjective and objective components. Blomker v. Jewell, 831
F.3d 1051, 1056 (8th Cir. 2016). In order to show that the harassment affected a term
or condition of employment, “the conduct must be sufficiently severe or pervasive to
create an environment that a reasonable person would find hostile or abusive and that
actually altered the conditions of the victim’s employment.” Crist v. Focus Homes,
Inc., 122 F.3d 1107, 1111 (8th Cir. 1997).

       Hales argues that an isolated incident may be sufficient to establish an effect
on an employee’s work condition. While this might be true in an “extremely serious”
incident, the incident in this case does not meet the demanding standard set forth in
the case law. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)); see
also Alagna v. Smithville R-II School Dist., 324 F.3d 975, 980 (8th Cir. 2003)
(holding that a male teacher’s touching a female teacher, telling her that he loved her,
and acting inappropriately for two years was not sufficiently severe to satisfy a claim
for hostile work environment sexual harassment). During the incident at Casey’s, the
customer never touched or overtly threatened Hales. Although Hales claims she felt
threatened, she has failed to make a sufficient showing that the customer’s conduct
was so severe or pervasive as to affect a term, condition, or privilege of her

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employment. As a result, we conclude that Hales’s work environment was not so
offensive as to be objectively hostile. See Alagna, 324 F.3d at 980-81.

       Hales has also failed to show that Casey’s knew of the customer’s harassing
conduct but failed to take remedial action. An employer’s liability turns on whether
the employer was aware of the conduct and whether it took appropriate action to
remedy the circumstances in a timely and appropriate manner. See Crist, 122 F.3d
at 1111. When Casey’s received the first complaint from the other female employees,
it took immediate action, telling the customer that he would be banned from the store
and that the police would be called if his behavior continued. Accordingly, because
Hales fails to satisfy both the fourth and fifth elements required under a Title VII
hostile work environment claim, the district court correctly granted summary
judgment in favor of Casey’s.3

       We turn then to Hales’s argument that the district court abused its discretion
in excluding evidence of her previous sexual assault and her related therapy. She
contends that the evidence would have given context to the incident with the
customer and would have tended to show that Hales acted reasonably in the
circumstances. To support her argument, Hales cites Oncale v. Sundowner Offshore
Services, Inc., which states, “[c]ommon sense, and an appropriate sensitivity to social
context, will enable courts and juries to distinguish between simple teasing . . . and
conduct which a reasonable person in the plaintiff’s position would find severely
hostile or abusive.” 523 U.S. 75, 82 (1998).

     Hales’s reliance on Oncale is misplaced, however, for the social context inquiry
Oncale says should be examined relates to whether a reasonable person would find


      3
        It is unsettled law in our circuit whether an employer may be held liable for
the actions of a customer under a hostile work environment sexual harassment claim.
We are assuming, without deciding, that such a claim can be maintained.

                                         -8-
the harassment so severe that it would affect a term or condition of employment. It
does not, as Hales suggests, require courts to delve into a plaintiff’s personal
background when assessing the objective severity of harassment. Thus, we conclude
that the district court did not abuse its discretion in excluding the evidence as
irrelevant under Federal Rule of Evidence 401. See Kozlov v. Associated Wholesale
Grocers, Inc., 818 F.3d 380, 396 (8th Cir. 2016) (standard of review).

                            C. Retaliatory Discrimination

       Hales also maintains that the district court erred in granting summary judgment
in favor of Casey’s because her retaliation claim was timely filed based on when she
received the EEOC’s administrative release letter.

       Title VII allows an aggrieved party to bring a civil action within ninety days
after notice of dismissal is given by the EEOC. See 42 U.S.C. § 2000e-5(f)(1). This
ninety-day period constitutes a limitations period that bars a suit that is not filed
within that time. Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121
(9th Cir. 2007). It is therefore crucial to ascertain the date on which the ninety-day
period began to run to determine whether a Title VII action was timely filed. Id. at
1121-22.

        “Generally, the ninety-day filing period begins to run on the day the right to sue
letter is received at the most recent address that a plaintiff has provided the EEOC.”
Hill v. John Chezik Imps., 869 F.2d 1122, 1124 (8th Cir. 1989). It is presumed that
a plaintiff will receive the notice three days after the mailing date. Fed. R. Civ. P.
6(d); see also Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984)
(per curiam) (stating that the presumed date of receipt for an EEOC right to sue letter
was January 30 after it was mailed January 27). Because it is undisputed that the
EEOC issued its letter on Hales’s retaliation claim on September 24, 2014, it is
therefore presumed that Hales received the letter on September 27, 2014. Hales filed


                                           -9-
suit on January 7, 2015—more than 100 days after the presumed receipt of the letter.

       Hales claims that she did not receive her right to sue letter related to her
retaliation claim until June 3, 2015, but she has offered no evidence to support this
claim, and she does not explain why she filed her suit six months before that date.
She cites her third amended complaint, which alleges that the letter arrived on June
3, 2015, as well as her father’s February 9, 2016, deposition testimony that he was the
only person to collect the mail related to the lawsuit and that he did not remember
receiving the right to sue letter, saying, “I know I did not receive this [September 24,
2014, letter].” J.A. 416. Hales thus has failed to substantiate her allegation “with
sufficient probative evidence that would permit a finding in her favor based on more
than mere speculation [or] conjecture.” See Clay v. Credit Bureau Enters., Inc., 754
F.3d 535, 539 (8th Cir. 2014) (citation and internal brackets omitted). Moreover,
Hales’s testimony that she did not read her mail from the EEOC and her father’s
admission that he did not diligently check his mail militate mightily against any claim
for equitable tolling. See Hill, 869 F.2d at 1124 (stating that equitable tolling not
appropriate when the plaintiff did not inform the EEOC of her new address); Brown,
466 U.S. at 151 (holding that a plaintiff “who fails to act diligently cannot invoke
equitable principles to excuse that lack of diligence”).

      The judgment is affirmed.
                     ______________________________




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