                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-1627
                                  ___________

Sandra Smith,                          *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       * Appeal from the United States
Ashland, Inc., a Kentucky corporation, * District Court for the
doing business as Ashland Petroleum,   * District of Minnesota
formerly known as Ashland Oil &        *
Refining Company,                      *
                                       *
            Appellee.                  *
                                  ____________

                            Submitted: December 14, 2000

                                 Filed: May 18, 2001
                                  ___________

Before McMILLIAN and MURPHY, Circuit Judges, and BOGUE,1 District Judge.
                          ___________

McMILLIAN, Circuit Judge.




      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
       Sandra Smith appeals from a final order entered in the United States District
Court2 for the District of Minnesota, granting summary judgment in favor of Ashland,
Inc., on her claims of discrimination based on race and gender, sexual harassment, and
retaliation under the Minnesota Human Rights Act ("MHRA"), Minn. Stat. § 363.01,
et seq., and common law battery. Smith v. Ashland, Inc., No. 98-1290 (D. Minn.
Feb. 2, 2000) (memorandum opinion and order). For reversal, Smith argues that the
district court lacked subject matter jurisdiction. Alternatively, Smith argues that the
district court erroneously disregarded relevant evidence establishing a genuine issue of
material fact on her MHRA claims. For the reasons stated below, we affirm.

                                      Jurisdiction
       Jurisdiction was originally proper in the district court under 28 U.S.C. § 1331,
as a result of Smith's federal race and gender discrimination and retaliatory discharge
claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, in
addition to parallel claims under the MHRA, and a common law claim for battery. On
October 15, 1998, the parties stipulated to an amendment of the original complaint,
dismissing the federal discrimination claims as untimely but recognizing diversity
jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1332.
Jurisdiction is proper in this court under 28 U.S.C. § 1291. The notice of appeal was
timely filed in accordance with Fed. R. App. P. 4(a).

                                     Background
      The following statement of facts is based primarily upon the Brief of Appellant,
supplemented by findings of the district court. On March 2, 1992, Ashland, Inc., the
owner and operator of an oil refinery in St. Paul Park, Minnesota, hired Sandra Smith,
a black woman, as a telephone operator. Prior to listing the job, the main office
reprimanded John Blankenship, the hiring supervisor, for making a racist comment and


      2
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.

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instructed him to hire on an equal opportunity basis. Blankenship, along with John
Roman, co-supervised Smith from May 2, 1992, until the fall of 1994. Smith was
promoted to office assistant within the first six months and received scores of 2 to 4
(ranging from "effective" to "very effective") on her performance reviews in 1992 and
1993. In November 1993, Smith received a promotion to the highest available clerical
position in the refinery.

       In December 1993, Smith applied for a "utility worker" position in the refinery,
which required a formal structured testing and interview process. Smith met with John
Jordan, the refinery's operations superintendent, who reacted negatively and made a
sexist comment about her desire for the job. Smith complained to Blankenship, and
Jordan was removed from Smith's interview and selection process. Smith was not one
of the eight individuals selected from the nearly 200 people who applied for the job.
Blankenship encouraged Smith to pursue technical training if she wanted a refinery
position, which she did not do.

      In March 1994, Roman criticized Smith's work performance and attitude. He
decreased her job responsibilities and offered to transfer her to refinery sales, which
Smith interpreted as a demotion. Smith declined the offer and complained to Ashland's
EEO officer, Bea Smith, about Roman's criticism. Bea Smith investigated Smith's
complaints. Smith did not object to the manner of this investigation.

       In the fall of 1994, Smith's supervisors were replaced by Joe Lake and Jim
Nelson. Nelson voiced dissatisfaction concerning several aspects of Smith's
performance over the course of 1995, including her inaccurate recording of work time,
tardiness, conflicts with a co-worker, and general poor performance. Smith believed
that Nelson did not like her and treated her unfairly by failing to give her enough time
to complete her assignments and by denying her request to change her work schedule,
even though he had granted a white female employee's similar request. Smith's March
1995 performance review rated her between 2 and 4 and stated that she showed a lot

                                          -3-
of initiative, completed a large volume of work, and was interested in learning new
things and preparing for more responsibility. Several co-workers and a manager
submitted statements remarking positively about the quality and quantity of Smith's
work between 1994 and 1996. Smith did not receive a raise in 1995.

        In August 1995, Smith collided in a hallway with a co-worker, Jeff DeLong.
Smith alleges that DeLong intentionally bumped into her "with his penis," and later
tried to scare her by laughing and speeding up toward her in his car in the parking lot.
Smith complained to her supervisor, Joe Lake, about this incident. Ashland maintains
that the contact was accidental and that Smith assured Lake that she was fine. Smith
did not submit any evidence to indicate that the collision was intentional or sexual in
nature.

      In January 1996, Smith complained to Bea Smith about sexual innuendoes
exchanged between DeLong and a female co-worker, Pam Zeipelt. According to
Ashland, Bea Smith investigated the matter and reprimanded both DeLong and Zeipelt
about inappropriate sexual discussions in the workplace.

      In February 1996, Smith sought another "utility worker" position in the refinery.
Because she failed to meet the minimum scores on a required skills test administered
by an outside party, Smith did not qualify to submit an application. At the same time,
Smith's supervisors rated her work as "marginal" and "unacceptable" in her
performance review. Smith disagreed with the evaluation, refused to sign it, and
accused Nelson and Lake of discriminating against her on the basis of her race. Smith
was placed on a 90-day probationary period to improve her performance. Smith
complained to Bea Smith that the job appraisal was unfair. Smith believed that her
complaints about DeLong and Zeipelt's inappropriate conversations in the workplace
prompted the poor performance review, a significantly increased workload, and
decreased interaction with her supervisor, Joe Lake, who stopped speaking with her
and communicated only via post-it notes. Bea Smith documented Smith's complaints.

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     At the end of March 1996, Nelson informed Smith that unless her performance
improved immediately, she would be fired. Smith was terminated for lack of
improvement on May 2, 1996.

       On April 21, 1997, Smith filed a discrimination charge with the Minnesota
Department of Human Rights ("MDHR"). On March 2, 1998, the MDHR issued a
finding of no probable cause for Smith's allegations. Smith filed a complaint in federal
district court on April 14, 1998, alleging race and gender discrimination and retaliatory
discharge claims arising under Title VII, parallel claims under the MHRA, and a
common law battery claim. On October 15, 1998, the parties stipulated to an
amendment of the original complaint, dismissing the federal discrimination claims as
untimely but recognizing diversity jurisdiction over the remaining state law claims
pursuant to 28 U.S.C. § 1332. Ashland moved for summary judgment on January 21,
2000.

      As part of the record, Smith submitted affidavits from former Ashland employees
who alleged that racism, sexism, and sexual harassment had occurred in the workplace.
Smith did not submit any evidence to indicate that these former employees had ever
complained to Ashland about their concerns.

       The district court granted Ashland's motion for summary judgment on
February 2, 2000, on the grounds that (1) Smith's claims of discriminatory employment
practices under the MHRA were barred by a one-year statute of limitations; (2) Smith's
claims did not constitute a continuing violation enabling her to circumvent the statute
of limitations; (3) Smith failed to offer evidence of racial animus or gender bias on the
part of the relevant decision-maker; (4) Smith failed to offer evidence showing a
pretextual reason for her termination; (5) Smith's sexual harassment allegations did not
constitute sexual harassment as a matter of law; (6) Smith failed to establish a prima
facie case of retaliation; and (7) Smith failed to offer evidence that Ashland should have
reasonably foreseen DeLong's potential for his alleged battery.

                                           -5-
      This appeal followed.

                                       Discussion

Standard of Review
       We review the district court's order granting summary judgment de novo,
viewing the evidence and the inferences drawn from the evidence in the light most
favorable to the nonmoving party, to ensure "that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c); see Henery v. City of St. Charles, 200 F.3d 1128, 1131 (8th Cir.
1999).

28 U.S.C. § 1332 Subject Matter Jurisdiction
       Smith argues that the district court lacked subject matter jurisdiction because
federal jurisdiction was based solely upon the parties' stipulation to diversity
jurisdiction, and such consent of the parties by itself does not satisfy subject matter
jurisdiction. See Brief for Appellant at 20 (citing No Power Line, Inc. v. Minnesota
Environmental Quality Council, 262 N.W.2d 312, 321 (Minn. 1997)). Smith contends
that the parties are not completely diverse because Ashland owns and operates a
refinery in Minnesota. We disagree.

       While it is true that consent alone cannot confer subject matter jurisdiction, the
parties stipulated to the fact of diverse citizenship based on Ashland's incorporation and
principal place of business in Kentucky, which fulfills diversity requirements under 28
U.S.C. § 1332(c)(1) ("a corporation shall be deemed to be a citizen of any State by
which it has been incorporated and of the State where it has its principal place of
business"). Such a stipulation is controlling because citizenship based on the location
of the principal place of business is valid for diversity purposes, and a corporation's
additional presence in another state does not destroy diversity jurisdiction. Union


                                           -6-
Pacific R.R. Co. v. 174 Acres of Land, 193 F.3d 944, 947-48 (8th Cir. 1999). As a
result, we hold that the district court properly exercised diversity jurisdiction.

Statute of Limitations
       Smith contends that the district court erred in failing to consider relevant
evidence that fell outside the statute of limitations, including: (1) her complaints to her
supervisor and the company's EEO officer of the sexual battery committed by DeLong
in August 1995; (2) statements from a former Ashland employee regarding the
reputation of Nelson, Smith's supervisor, for harassing employees because of their race
and gender; (3) statements from former Ashland employees exhibiting company-wide
racial and gender-based animus; and (4) statements from former Ashland employees
that Ashland retaliated against employees who complained to management about illegal
treatment. We disagree.

        Smith's claims are governed by the MHRA, which provides a one-year statute
of limitations for filing claims of unfair discriminatory employment practices, beginning
on the date of the allegedly unfair or discriminatory act. Minn. Stat. § 363.06, subd.
3. Because Smith filed her charges with the MDHR on April 21, 1997, the only
actionable events in this case were those which occurred after April 21, 1996, two
weeks prior to her termination. The allegations upon which Smith relies refer to events
that do not fall within the statutory period, and the district court properly disregarded
them under Minnesota law. See Breen v. Norwest Bank Minnesota, N.A., 865 F.
Supp. 574, 577 (D. Minn. 1994) (barring a claim filed under the MHRA more than one
year after the alleged discriminatory practice); Diez v. Minnesota Mining & Mfg., 564
N.W.2d 575, 578-79 (Minn. Ct. App. 1997) (disallowing a claim of discrimination
when the evidence of discrimination occurred more than a year before the claim was
filed).

Continuing Violation Theory


                                           -7-
       Smith alleges that the district court erred in dismissing as discrete incidents the
acts of race and gender discrimination that began before she was hired and continued
after she was fired. Under Minnesota law, each individual discriminatory act which is
part of a continuing violation triggers anew the time period for reporting the entire
pattern of discrimination, "as long as at least one incident of discrimination occurred
within the limitations period." Treanor v. MCI Telecommunications Corp., 200 F.3d
570, 573 (8th Cir. 2000). In order to prove a continuing violation of the MHRA, Smith
must demonstrate either: (1) a series of related acts, one or more of which fell within
the limitations period, or (2) the maintenance of a discriminatory system both before
and during the limitations period. See Mandy v. Minnesota Mining, 940 F.Supp. 1463,
1468 (D. Minn. 1996). "[T]he critical question is whether 'any present violation exists'
during the statutory period." Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1302 (8th
Cir. 1997) (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)).

       Smith argues that Ashland followed a pattern of maintaining a discriminatory
system throughout the workplace, including promotions, discipline and termination,
which resulted in continuing violations of the MHRA, thereby preventing the statute of
limitations from barring this action. See Brief for Appellant at 26, (citing Satz v. ITT
Financial Corp., 619 F.2d 738, 743-44 (8th Cir. 1980) (holding that where "a presently
maintained policy of discrimination" exists, the statutory limitations period does not bar
a claim)). Smith specifically contends that her termination was the act occurring within
the limitations period which continued Ashland's pattern of discrimination. However,
Smith's termination alone is insufficient evidence to prove a pattern of discrimination,
especially since Smith did not offer any evidence to show that other employees were
systematically terminated due to their race and gender or that other employees were
promoted in response to their race and gender. As such, Smith's termination is an
"isolated event, [which] alone does not constitute a continuing violation." Jenson v.
Eveleth Taconite Co., 130 F.3d at 1303.




                                           -8-
       Because a hostile work environment claim, by nature, constitutes a continuing
violation, see Gipson v. KAS Snacktime Co., 83 F.3d 225, 229 (8th Cir. 1996), we may
consider "background evidence from the pre-limitations period [which] may be relevant
to illuminate whether [Smith's] work environment during the limitations period was
sufficiently hostile." However, we may only examine such evidence if Smith can also
demonstrate "evidence of a hostile working environment violation in the limitations
period." Gipson v. KAS Snacktime Co., 171 F.3d 574, 580 (8th Cir. 1999). Because
Smith did not allege any hostile working environment violation during the limitations
period, the pre-limitation period evidence she proposes is irrelevant.

      As a result, we agree with the district court that Smith failed to identify any act
of discrimination which occurred during the limitations period that indicates a
widespread system or policy of discrimination. We therefore hold that the district court
did not err in finding no genuine issue of material fact that Ashland did not commit a
continuing violation of the MHRA.

Retaliation Claim
       Smith's retaliation claim remains as the only claim under the MHRA that was not
barred by the statute of limitations. The MHRA, reflecting the language of Title VII,
makes it illegal for an employer to retaliate against an employee who opposes an
unlawful employment practice. See Minn. Stat. § 363.03, subd. 7. In order to establish
a prima facie case of retaliation, Smith must demonstrate that: (1) she engaged in
statutorily-protected conduct; (2) some adverse employment action was taken against
her; and (3) the two were causally connected. See Bassett v. City of Minneapolis, 211
F.3d 1097, 1104-05 (8th Cir. 2000); Hubbard v. United Press Intern, Inc, 330 N.W.
428 (Minn. 1983). Smith has satisfied the first two elements: she complained to
Ashland's EEO officer about race and gender discrimination, and she was subsequently
fired.




                                          -9-
        Smith argues that the district court erred in failing to find a causal connection
between her termination and her engagement in the protected activity of complaining
about sexual harassment, sexual battery, and race discrimination in the workplace. She
contends that the proximity in time (one month) between her January 3, 1996 complaint
to the EEO officer about DeLong's alleged sexual battery and the subsequent poor
performance review she received on February 14, 1996 is sufficient to create an
inference of retaliation. See Brief for Appellant at 28 (citing Bassett v. City of
Minneapolis, 211 F.3d 1097 (8th Cir. 2000) (holding that the temporal proximity
between an employee's discrimination complaints and the employer's adverse action
justified an inference of retaliation and presented a genuine issue of material fact
precluding summary judgment)). However, as the district court pointed out, Ashland
began documenting problems with Smith's performance as early as March 1994, which
does not support an inference of retaliation based on temporal proximity. Moreover,
Smith admits that she first complained about the sexual battery in August 1995. In
addition, Smith's complaints were properly investigated by Ashland's EEO officer.
Smith may not avoid criticism simply because she complained about the workplace.
See Jackson v. St. Joseph State Hospital, 840 F.2d 1387, 1391 (8th Cir. 1988) (holding
that protection from complaining about illegal activity in the workplace does not
insulate an employee from the consequences of inadequate work performance).

       Consequently, we agree with the district court that Smith failed to establish any
genuine issue of material fact showing a causal connection between her complaints and
her termination and that Ashland was entitled to summary judgment as a matter of law
on Smith's retaliation claim.

                                     Conclusion
      For the reasons stated, the judgment of the district court is affirmed.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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