                 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 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).




                                         -2-
       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.

                                      -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 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)

                                         -4-
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)).




                                         -5-
                            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.

                                            -6-
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 pre-
limitations 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.



                                          -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 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

                                         -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. 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

                                          -9-
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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