                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2535
                                   ___________

Melissa Diaz,                           *
                                        *
             Appellant,                 *
                                        * Appeal from the United
      v.                                * States District Court for the
                                        * Eastern District of Arkansas.
Swift-Eckrich, Inc., a foreign          *
corporation, fictitiously known as      *
ASE Deli/Foodservice Company,           *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: December 13, 2002

                                  Filed: February 6, 2003 (Corrected 2/14/03)
                                   ___________

Before MORRIS SHEPPARD ARNOLD, RILEY, and SMITH, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Melissa Diaz appeals a grant of summary judgment to her former employer
Swift-Eckrich, Inc., in her employment discrimination action brought under Title VII
of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e through 2000e-17. Ms. Diaz,
who is Hispanic, alleged that she was subjected to a hostile work environment
because of her sex and because of her national origin. She also alleged that because
of her national origin she was not given a raise in a timely manner and was eventually
terminated from her employment. We reverse in part and affirm in part.
                                            I.
       We first address Ms. Diaz's claim that she was subjected to a hostile
environment that was caused by sexual harassment. Under Title VII, a discrimination
charge must be filed with the Equal Employment Opportunity Commission (EEOC)
no later than 180 days after the "alleged unlawful employment practice occurred," see
42 U.S.C.A. § 2000e-5(e)(1). Ms. Diaz filed an EEOC charge in January 2000.
According to Ms. Diaz's deposition testimony, the last time she was subjected to
sexual harassment was in the winter of 1998-99, more than 180 days before she filed
the charge. Although Ms. Diaz points out on appeal that Swift-Eckrich discharged
her in December 1999, no evidence connects her termination to the alleged sexual
harassment. Cf. National R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061, 2075
(2002). We therefore agree with the district court that this claim is time barred.

                                           II.
       Ms. Diaz also claimed that she was subjected to a hostile environment because
she is Hispanic. Viewing the evidence favorably to Ms. Diaz and giving her the
benefit of all reasonable inferences, see Luciano v. Monfort, Inc., 259 F.3d 906, 908
(8th Cir. 2001), we conclude that there are genuine issues of fact that require us to
reverse the entry of summary judgment with regard to this claim.

      Ms. Diaz began working for Swift-Eckrich in August, 1998. On her first day,
a co-worker, Phoebe Oler, told her that she had no business working there because
"Hispanics should be cleaning," that Hispanics are "stupid," and that Ms. Diaz was
"stupid." Ms. Oler added that she did not want to be in the same room with Ms. Diaz.
Ms. Diaz reported the incident to Carl Dosher, who supervised her and Ms. Oler.
When Ms. Diaz "went to him and ... told him what was going on" and explained that
Ms. Oler was "making remarks" to her, he walked away.

       Ms. Diaz testified at her deposition that throughout her employment, Ms. Oler's
taunting was "continuous": Ms. Oler called Ms. Diaz "stupid," made rude noises

                                         -2-
around her, and laughed at her. On one occasion shortly after Ms. Diaz was hired,
Mr. Dosher was present when Ms. Oler criticized Ms. Diaz's work, called her
"stupid," and threatened her, and Ms. Diaz said that Ms. Oler "was prejudiced." That
day Mr. Dosher moved Ms. Oler to another work area, but the next day she returned
to Ms. Diaz's work area. Ms. Oler later transferred to become a training coordinator,
but she continued to direct rude noises toward Ms. Diaz and to laugh at her.
Sometimes she would come to where Ms. Diaz was working, look at her across the
table, and laugh at her; this made it difficult for Ms. Diaz to work. Ms. Diaz
complained to Mr. Dosher about Ms. Oler's conduct five or six times or more; on
these occasions he shushed Ms. Diaz, told her to pay no attention to it and that she
would be all right, or "laughed it off." Ms. Oler's conduct did not change.

       According to Ms. Diaz's deposition testimony, another co-worker, Debbie
Hulgan, repeatedly stated that "Hispanics should scavenge for beans on the floor,"
while staring at Ms. Diaz and laughing. Ms. Diaz testified that Ms. Hulgan's
"comments about Hispanics" in Ms. Diaz's work area "kept on and on." Ms. Diaz
"kept telling" Mr. Dosher that Ms. Hulgan was "doing stuff like that, making those
comments still," but she did not know if Mr. Dosher reported it. New people who
were hired asked Ms. Diaz whether she had heard what Ms. Hulgan was saying about
Hispanics. In the fall of 1999, when Ms. Hulgan was a training coordinator in
another department, she hit Ms. Diaz on two occasions and called her "trash paper."
Ms. Diaz notified one of the supervisors when Ms. Hulgan hit her on the head, and
the supervisor said that he would report it. She testified that she did not notify
anyone when Ms. Hulgan hit her again because "they weren't doing anything about
it." She added that "[d]ifferent things kept on happening and happening and nobody
was doing anything about it."

      In October 1999, Ms. Diaz reported the harassment to Dave Grzeciak, who was
then her supervisor. At a meeting between Mr. Grzeciak, Karen Lugeanbeal (the
human resources manager), and Ms. Diaz, Ms. Diaz explained everything that had

                                        -3-
happened to her since she began working at Swift-Eckrich. According to Ms. Diaz,
Ms. Lugeanbeal "made a comment like, so what, I've made remarks about Hispanics,
too," after which Ms. Diaz began to cry and stated that she had to take medication
because of the stress. Swift-Eckrich offered evidence that Ms. Diaz's accusations
were investigated and "could not be substantiated," but that a meeting was held at the
end of October in which Mr. Grzeciak warned employees that those who made racial
or demeaning comments would be disciplined up to and including discharge.

       In November 1999, another co-worker stood across the table from Ms. Diaz,
stared at her, and announced that she was prejudiced against Ms. Diaz and did not
want to be in the same room with her. She then made fun of Ms. Diaz's accent and
asked her whether she was from Mexico. When Ms. Diaz said that she was from New
Mexico, the co-worker responded, "What's the difference?" After Ms. Diaz reported
this incident, the co-worker apologized, saying that she had been told to do so by
people in "the office." This employee did not engage in any further harassment.

      To support this claim for hostile environment harassment by non-supervisory
co-workers, Ms. Diaz had to show that she was a member of a protected group; she
was subjected to unwelcome harassment; the harassment was because of her
membership in the group; the harassment affected a term, condition, or privilege of
her employment; and Swift-Eckrich knew or should have known about the
harassment but "failed to take prompt and effective remedial action." See Carter v.
Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999).

       Ms. Diaz is Hispanic and, according to her testimony, she was subjected to
unwelcome harassment. We note that some of the conduct, such as Ms. Oler's rude
noises, laughter, and statements that Ms. Diaz was "stupid," were not obviously based
on the fact that Ms. Diaz is Hispanic. But "[a]ll instances of harassment need not be
stamped with signs of overt discrimination to be relevant under Title VII if they are
part of a course of conduct which is tied to evidence of discriminatory animus." Id.

                                         -4-
at 701. Here we believe that Ms. Oler's early comments, in which she demeaned
Hispanics and specifically referred to both Hispanics and Ms. Diaz as "stupid," are
sufficient for a fact-finder to find that her ongoing harassment of Ms. Diaz was based
on her national origin. Similarly, we believe that Ms. Hulgan's offensive references
to Hispanics may support a finding that she hit Ms. Diaz as part of the same pattern
of harassment.

       To establish that the harassment altered a term, condition, or privilege of her
employment, Ms. Diaz had to show that it was "severe or pervasive enough to create
an objectively hostile or abusive work environment--an environment that a reasonable
person would find hostile or abusive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). We must look at "all the circumstances" to assess the degree of the
harassment, "includ[ing] the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; ...
whether it unreasonably interferes with an employee's work performance" id. at 23;
"physical proximity to the harasser[;] and the presence or absence of other people,"
see Carter, 173 F.3d at 702. Although infrequent rude behavior does not create a
hostile environment, such claims may be "based on the cumulative affect of
individual acts," see Morgan, 122 S. Ct. at 2073.

        Here we believe that a fact-finder could conclude that the harassment was
frequent, that the demeaning comments and conduct were specifically directed at
Ms. Diaz from a close range, and that other employees were sometimes present. She
testified that Ms. Oler's offensive conduct was "continuous" and Ms. Hulgan's
demeaning remarks "kept on and on," and both employees were in her work area. Co-
workers questioned Ms. Diaz about Ms. Hulgan's remarks regarding Hispanics. As
in Hathaway v. Runyon, 132 F.3d 1214, 1223 (8th Cir. 1997), "[d]espite her
complaints, [the plaintiff] was forced to work in close proximity to [the harassers],
which added to the hostility of her environment." Also, although in order to be
actionable the "[h]arassment need not be so extreme that it produces tangible effects

                                         -5-
on job performance or psychological well-being," Carter, 173 F.3d at 702, according
to Ms. Diaz both her attendance at work and her mental health suffered as a result of
her working environment, and she required psychiatric treatment and medication. We
conclude that the evidence created a material question of fact as to whether she was
subjected to pervasive harassment based on her national origin that altered the
conditions of her employment.

       Because those who engaged in the harassment did not have supervisory power
over Ms. Diaz, she was required to show that Swift-Eckrich knew or should have
known about the harassment and failed to respond in a prompt and effective manner.
See id. At her deposition, Ms. Diaz testified that on her first day at work Ms. Oler
made several derogatory comments to her regarding Hispanics. Ms. Diaz testified
that she told her supervisor, Mr. Dosher, "what was going on" and that Ms. Oler was
"making remarks." We believe that it may be inferred from this testimony that
Ms. Diaz notified her supervisor of the discriminatory remarks made by Ms. Oler.
Ms. Diaz testified that she continued to report Ms. Oler's conduct to him, in addition
to reporting some of the incidents to another individual who "reported to"
Mr. Dosher. In addition, Ms. Diaz "kept telling" Mr. Dosher about Ms. Hulgan's
offensive remarks regarding Hispanics.

       Based on all of the evidence, we believe a material question of fact exists as to
whether Mr. Dosher's knowledge may be imputed to Swift-Eckrich. See Hall v. Gus
Const. Co., 842 F.2d 1010, 1016 (8th Cir.1988); cf. Jacob-Mua v. Veneman, 289 F.3d
517, 523 (8th Cir. 2002). Mr. Dosher was Ms. Diaz's supervisor when she repeatedly
reported the harassment to him. He apparently had the authority to discipline
employees because after one incident he met with Ms. Diaz and Ms. Oler and
removed Ms. Oler from the area for the rest of the day. Also, we think that a fact-
finder could conclude that it was reasonable for Ms. Diaz to believe that Mr. Dosher
had a duty to report the harassment to others in the company. See Sims v. Health
Midwest Physician Services Corp., 196 F.3d 915, 921 (8th Cir. 1999). In fact, late

                                          -6-
in her employment Ms. Diaz reported the harassment to her then supervisor,
Mr. Grzeciak, and he contacted the human resources manager and held an employee
meeting to address the issue.

       We also conclude that Ms. Diaz offered sufficient evidence that Swift-Eckrich
failed to take prompt and effective remedial action to end the harassment. In
assessing this aspect of the claim, we may consider the amount of time between notice
of the harassment and any remedial action, "the options available to the employer
such as employee training sessions [and] disciplinary action taken against the
harasser(s), ... and whether or not the measures ended the harassment." Stuart v.
General Motors Corp., 217 F.3d 621, 633 (8th Cir. 2000).

       Ms. Diaz reported the harassment that occurred on her first work day to
Mr. Dosher, and he walked away. Ms. Diaz testified that the harassment continued
throughout her employment and that she repeatedly reported the incidents involving
Ms. Oler and Ms. Hulgan to Mr. Dosher, but he was not responsive. Based on the
evidence, the only action he took from August 1998 until October 1999 was to
remove Ms. Oler from Ms. Diaz's work area for part of one day, while telling them
to stay away from each other. According to Ms. Diaz, in October 1999 she discussed
the ongoing harassment with the human resources manager, who minimized the
problem by telling Ms. Diaz that she herself had made remarks about Hispanics.
Swift-Eckrich held an employee training session at the end of October but did not
discipline any employees. Ms. Diaz testified that Ms. Oler's taunting continued
throughout her employment, which did not end until December. Although another
employee who verbally attacked Ms. Diaz shortly before her termination was required
to apologize, we note that the apology (as well as the employee training session)
occurred over a year after the harassment began and was reported. Based on all of the
circumstances, we believe that a question of material fact exists as to the promptness
and adequacy of Swift-Eckrich's response.



                                         -7-
       We therefore conclude that Ms. Diaz offered sufficient evidence to allow her
to survive summary judgment with respect to her hostile environment claim resulting
from harassment based on her national origin.

       We disagree, however, with Ms. Diaz's contention that her harassment claim
is further supported by evidence that Swift-Eckrich must have disclosed to her co-
workers that she was taking medication for stress. According to Ms. Diaz, her
psychiatrist told the human resources manager that she was taking medication and
somehow Ms. Diaz's co-workers obtained this information without Ms. Diaz's
permission. Although Ms. Diaz attempts to rely on this evidence, we do not believe
that she has established a connection between the alleged disclosure and her claim of
discriminatory harassment.

                                          III.
        Ms. Diaz also argues that although she received a pay increase for passing a
skills test in May 1999, she should have received the increase sooner than she did.
Swift-Eckrich presented payroll records indicating that Ms. Diaz did, in fact, receive
an increase in her hourly rate in May 1999. Because Ms. Diaz offered no evidence
to clarify when she should have received the increase, when she did receive it, the
amount she should have received, or the amount that she did receive, we conclude
that her evidence is insufficient to create a material issue of fact as to this claim.

                                        IV.
       Finally, Ms. Diaz contends that she was terminated because she is Hispanic.
Assuming that she established a prima facie case of discrimination, Swift-Eckrich
offered a legitimate non-discriminatory reason for discharging her. See Forrest v.
Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir.2002). Ms. Diaz was involved in an
altercation with a co-worker in December 1999. At that time she and the other
employee were reprimanded, although Ms. Diaz disputes Swift-Eckrich's evidence
that she was warned that another similar incident could result in her termination.

                                         -8-
Only two days later she had a dispute with a different co-worker. Swift-Eckrich
states that it discharged Ms. Diaz based on these two occurrences.

      Ms. Diaz contends that the reason offered for her termination is a pretext for
discrimination because the other woman involved in the second incident, who was not
Hispanic, was suspended rather than terminated. But Ms. Diaz's evidence is not
probative of pretext because she has not established that the other employee was
similarly situated to her. See id. at 691-92. Swift-Eckrich denies that this co-worker
was involved in a previous incident, and Ms. Diaz has offered no evidence to the
contrary. The employer also offered evidence that another employee, who was not
Hispanic, was terminated after being involved in two confrontations with co-workers.
We therefore conclude that Ms. Diaz has not offered sufficient evidence to create a
material issue of fact as to whether she was terminated because she is Hispanic.

                                          V.
       Accordingly, we reverse the district court's judgment with respect to Ms. Diaz's
claim of harassment on account of her national origin and we remand for further
proceedings. With respect to all of Ms. Diaz's other claims, we affirm the judgment
of the district court.

      A true copy.

             Attest:

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




                                         -9-
