United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                    No.99-4258
                                   ___________

Janice E. Palesch,                      *
                                        * Appeal from the United States
             Appellant,                 * District Court for the Eastern
                                        * District of Missouri
                                        *
 vs.                                    *
                                        *
Missouri Commission on                  *
Human Rights, et al.,                   *
                                        *
             Appellees.                 *
                                   ___________

                          Submitted: September 15, 2000
                            Filed: November 21, 2000
                                   ___________

Before RICHARD S. ARNOLD, Circuit Judge, BATTEY,1 and MOODY,2 District



       1
        The Honorable Richard H. Battey, United States District Judge for the
District of South Dakota, sitting by designation.

       The Honorable James M. Moody, United States District Judge for the
       2

Eastern District of Arkansas, sitting by designation.
      Judges.3
                                    ___________

MOODY, District Judge.



        Plaintiff Janice E. Palesch appeals from the District Court’s4 entry of summary
judgment as to her claims of: (1) race and sex discrimination under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; (2) retaliation in
violation of Title VII; (3) disability discrimination in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12201 et seq.; and (4) conspiracy to violate her
civil rights in violation of 42 U.S.C. § 1985(3). Plaintiff’s ADA and Title VII claims
were filed against her employer, the Missouri Commission on Human Rights (“the
Commission”) and the Department of Labor and Industrial Relations (“DLIR”).”
Plaintiff’s conspiracy claim named several individual defendant employees of the
Commission. In addition to appealing the District Court’s grant of summary judgment,
Palesch also appeals the District Court’s denial of her motion to stay her claim of
disability discrimination. We affirm.

                                     Background

       The District Court’s well-written twenty page opinion describes in considerable
detail the factual background of this case. Palesch, a white female, began her
employment with the Missouri Human Rights Commission in 1992 as a Human Rights


      3
        Pursuant to 28 U.S.C. Sec. 46(b), the Chief Judge certified the existence of a
judicial emergency necessitating the designation of a panel consisting of fewer
than two members of the Court of Appeals.
      4
        The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri, Eastern Division.
                                          -2-
Officer. Her duties entailed investigating filed charges and making preliminary
recommendations as to whether or not there was probable cause for proceeding with
a claim. Palesch claimed that her employer discriminated against her based on race,
gender and disability.

       In addition to the state agency defendants, Palesch also sued six state employees,
alleging they conspired to violate her civil rights. The relationship of these employees
to the Commission is as follows: Steve Skolnick is Deputy Director/Legal Counsel of
the Commission. Alvin Plummer was Executive Director of the Commission from 1981
until June of 1997. Eric Krekel is Director of Operations. Sheryl Rose is a Regional
Manager who reports directly to Krekel. Frank Montgomery is a unit supervisor who
reports to Rose. Ernestine Gage is a personnel officer.

      Plummer, Krekel and Rose participated in the decision to hire Palesch.
Montgomery was her immediate supervisor. From the date of her hire through her
performance appraisal in July of 1996, Palesch’s performance ratings ranged from
“Successful” to “Outstanding.” During this period, Montgomery had only minor
complaints about Palesch's work and generally considered her an excellent employee.

      In May of 1996, problems began to develop between Palesch and other
employees of the Commission. On May 21, 1996, Palesch submitted a memo to
Plummer, as Executive Director, complaining about a change in policy relating to
reduction of compensatory time and about conduct of two co-workers, Sheila Williams
and Fred Hatley. Palesch contended that Williams, a black woman, had threatened her
with bodily harm and had damaged her automobile in January of 1995. Palesch also
voluntarily disclosed for the first time that she had been diagnosed with “severe
depression” for which she was receiving medication. Palesch did not claim that the
treatment she complained of occurred because of her gender or race.

      On May 25, 1996, Palesch left work early and did not come in on the following

                                           -3-
day because she felt depressed. When she returned to work on the following Monday,
she spoke with co-worker Vanessa Foster and made the statement: “Well, I’ll tell you
what. If I had come in on Friday, I could have shot somebody.” Foster was unsure if
the statement was made in jest or not.

       On May 29, 1996, Palesch was interviewed by Montgomery and Rose about her
statement to Foster. Palesch admitted making the statement but said it was meant as
a joke. Effective June 4, 1996, Palesch was put on administrative leave with pay
pending receipt of medical information from her physician concerning how her
condition impacted her ability to work. The memorandum documenting her leave
specifically mentioned as a reason for the paid leave Palesch’s threatening statements
to and complaints about her co-workers.

      Palesch’s physician, Dr. Carol Robinson, supplied the requested information in
a memorandum dated June 5, 1996. In the memorandum, Robinson stated that she had
been treating Palesch for depression since 1995, that Palesch was about to start
counseling, and that, in her view, Palesch was not a threat to any co-worker.

      Meanwhile, the Commission had been investigating the charges raised by
Palesch in her May 21, 1996, memorandum in which she complained about her co-
workers. On June 13, 1996, Rose and Montgomery documented the investigation in
a memorandum and concluded that Palesch’s claims about her co-workers could not
be verified. Some of the incidents about which Palesch complained occurred in late
1994 and early 1995 and her delay in reporting her complaints to management made
Palesch’s allegations more difficult to investigate.

      On June 14, 1996, Palesch filed her first charge of discrimination with the EEOC
against the defendants. She alleged discrimination based on race, sex and disability.

      On June 17, 1996, Montgomery authorized Palesch to work from her home until

                                         -4-
additional medical information could be obtained from Dr. Robinson and counselor
Teresa Wojak. Montgomery specifically inquired of Dr. Robinson and Wojak if
Palesch needed special accommodations to return to work. In response, Montgomery
received a letter from Wojak and Dr. David Ohlms, a psychiatrist, stating that Palesch
“posed no threat.”

       Palesch returned to work in the office on July 16, 1996, and was moved to an
office of her choosing. She was also given credit for cases completed due to her
administrative leave status and was recognized as "investigator of the quarter" by
Montgomery.

       Plummer resigned as Director of the Commission in June of 1997. At that time,
Palesch’s Performance Appraisal indicated that she needed improvement because of
a production deficiency. During a production quarter, Human Resource Officers were
required to complete a minimum of fifteen cases and a minimum of sixty cases within
a year. If production fell below twenty percent of the minimum, the officer could be
placed on an Action Plan.

      At the end of the production year for 1996, Palesch was fifteen cases short of the
minimum and was placed on an Action Plan from June to September, 1997. She did
not meet the requirements of the first plan and was placed on another plan.

       On November 4, 1997, Palesch filed a second charge with the EEOC alleging
retaliation. At this point, Skolnick directed Palesch to be examined by Dr. Robert
Packman, an independent psychiatrist, to determine if she could perform the essential
functions of her job. Dr. Packman examined Palesch in December of 1997 and
recommended that she be placed on medical leave because of the stress she was
experiencing. Dr. Packman’s report noted Palesch’s refusal to provide medical
information which restricted his ability to render a complete assessment of her ability
to perform.

                                          -5-
       On December 29, 1997, Skolnick put Palesch on involuntary leave with pay and
instructed her to make arrangements with her treating physician to get the information
requested by Dr. Packman. On January 22, 1998, Krekel recommended to Skolnick
that Palesch be discharged for failing to furnish medical releases to her physician to
provide medical records to Dr. Packman. This recommendation was forwarded to
Gage as the personnel officer with oversight responsibility in matters of employee
discipline and terminations.

      After receiving notice of the termination, Palesch responded by stating that she
had never received the letters requesting that she release the information and she then
submitted two properly executed release forms. Upon receipt of the forms, Palesch’s
termination was suspended.

        After Dr. Packman received the additional medical records from Olhm, Robinson
and Wojak, he issued a report opining that Palesch could not perform the essential
functions of her job and that she posed a threat to herself and others in the workplace.
On August 28, 1998, Palesch was notified of her dismissal. The reasons stated in the
letter for the dismissal were Palesch’s inability to perform the essential functions of her
job and that her continued employment posed a direct threat to the health and safety of
herself and others.

                                       Discussion

       We review a grant of summary judgment de novo. The question before the
district court, and this court on appeal, is whether the record, when viewed in the light
most favorable to the non-moving party, shows that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); see, e.g., Celotex Corp. v. Catrett, 

, 322-23, 

, 

(1986); Anderson v. Liberty Lobby, Inc., 

, 249-50,

, 

(1986); Get Away Club, Inc. v. Coleman, 969 F.2d

                                            -6-
664, 666 (8th Cir. 1992); St. Paul Fire & Marine Ins. Co. v. FDIC, 

, 699
(8th Cir. 1992). The nonmoving party is entitled to the benefit of all reasonable
inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas.
& Sur. Co., 

(8th Cir. 1980). The nonmoving party may not merely rest
upon allegations or denials in its pleadings, but must set forth specific facts by
affidavits or otherwise showing that there is a genuine issue for trial. Burst v. Adolph
Coors Co., 

, 932 (8th Cir. 1981).

       Palesch couched her Title VII race and sex discrimination claims in the form of
hostile work environment, discriminatory treatment, and retaliation allegations. She
contends that, because of her gender and race, she was subjected to workplace
harassment; that she was treated differently from similarly situated employees; that she
was unlawfully discharged; and, that she suffered unlawful retaliation. Each of these
claims will be treated separately.

      Hostile Work Environment

       Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). Title VII’s protections extend beyond “‘terms’ and ‘conditions in the narrow
contractual sense.” Faragher v. City of Boca Raton, 

, 786, 

, 

(1998)(quoting Oncale v. Sundowner Offshore Servs., Inc.,

, 78, 

, 

(1998))(internal quotation omitted).
 Title VII has been interpreted as reflecting Congress’ intent to define discrimination
in broad terms without enumerating specific discriminatory practices or specifically
identifying all prohibited conduct and activities. See Hall v. Gus Constr. Co., 

, 1014 (8th Cir. 1988).


                                          -7-
        Harassment of an employee based on a prohibited factor (e.g., gender, race,
religion) is prohibited conduct under Title VII. Hostile work environment harassment
occurs when “the workplace is permeated with ‘discriminatory intimidation, ridicule,
and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Harris v. Forklift Sys., Inc.,
510 U.S., 17, 21, 

, 

(1993) (citations omitted). To
prevail on her hostile work environment claim, Palesch must present evidence that: (1)
she belongs to a protected group; (2) she was subject to unwelcome harassment; (3) the
existence of a causal nexus between the harassment and her protected group status; (4)
the harassment affected a term, condition, or privilege of employment; and (5) her
employer knew or should have known of the harassment and failed to take proper
action.5 The complained of conduct must have been severe or pervasive enough to
create an objectively hostile work environment. Harris v. Forklift Sys., Inc., 

, 21, 

, 

(1993).
        We agree with the District Court that Palesch failed to present any competent
evidence to link the complained of conduct to a race or gender-based animus. We
further find that the evidence presented by Palesch failed to demonstrate, under the
totality of the circumstances, that the harassing conduct was “so severe or pervasive
that it create[d] an abusive working environment.” Burns v. McGregor Elec. Indus.,
Inc., 

, 564 (8th Cir. 1992)(citing Meritor Sav. Bank v. Vinson, 

, 67, 

, 2405, 

(1986)). Palesch’s contentions do not rise
to the level of sustained harassment that we have previously found to be a proper
foundation for the successful pursuit of a hostile environment claim. See 

Moreover, the required causal nexus between the complained of harassment and the
protected status of Palesch (gender and race) is conspicuously absent in this case.


       This final element applies to allegations of non-supervisory harassment, but
       5

not to allegations of supervisory harassment. See Carter v. Chrysler Corp., 

, 700 (8th Cir. 1999). Thus, to the extent Palesch claims harassment by
her supervisors, she need not prove her employer knew or should have known of
the harassment.
                                             -8-
       Palesch contends that her supervisor became biased against her when she wrote
a memo complaining about the conduct of two co-workers. One of the co-workers was
black and the other was a male. Palesch further complains that her co-workers and
supervisors frequently ignored her, that she was isolated from office social activities,
and that co-worker Sheila Williams damaged her car, shoved her against a wall, and
threatened her with bodily harm. Palesch failed to provide anything more than bare
allegations that her co-workers harassed her because of her race or gender. Further,
Palesch admitted to non-discriminatory explanations for her co-workers’ behavior
during her own deposition, numerous examples of which are outlined in the District
Court’s opinion.6

        Palesch waited over a year to report the alleged offensive conduct, which no
doubt caused difficulty in investigating her claims. To the extent Palesch complained
to her superiors about how she was treated, the Commission promptly and reasonably
investigated her allegations. The Commission could not verify her complaints.

      In addition to producing insufficient evidence to create a jury question on
whether her co-workers subjected her to unlawful harassment, Palesch also failed to
produce evidence sufficient to create a fact question as to whether her supervisors


      6

       For example, Palesch testified that Ms. Williams disliked her because Palesch
befriended another employee whom Ms. Williams disliked. Palesch further testified
that co-worker Vanesa Foster’s close friendship with Ms. Williams was responsible for
Ms. Foster’s conduct toward Palesch. In response to being asked why she thought she
was ignored by her co-workers and supervisors, Palesch opined that when the
“‘[p]owers that be’ wouldn’t speak to me, I guess they [the co-workers] thought it was
perfectly all right to act out and just simply do the same.” When asked for any
evidence to substantiate her opinion, Palesch admitted that it was pure speculation on
her part. Plaintiff opined that co-worker Fred Hatley disliked her because she
volunteered to help him with his work and then reported to a supervisor that Mr.
Hatley’s work was incomplete.
                                          -9-
created a hostile environment. Palesch complains that her supervisors harassed her by
placing her on leave with pay and by requiring an independent psychiatric exam.
Under all the circumstances, it was reasonable to put Palesch on paid leave until the
extent of her medical condition and ability to work could be determined by her
physicians. The Commission could not afford to ignore Palesch’s admitted statement
regarding shooting someone at work, particularly in light of other factors which
indicated that Palesch was not mentally stable. Palesch wrote a series of
memorandums in which she complained of co-workers not speaking to her, rolling their
eyes at her, and general office indignities, although she never alleged any racial or
gender motivated conduct associated with these complaints. Palesch herself noted her
concern over a “further deepening” of her depression. The Commission’s response
was reasonable and this Court will not second-guess it, particularly in the complete
absence of any evidence that the Commission was motivated by Palesch’s gender or
race.

       The actions complained of by Palesch, even when viewed in a light most
favorable to her, appear to be nothing more than an effort to impose a code of
workplace civility. The complained of conduct simply does not rise to the level of
hostile work environment prohibited by Title VII.

       While it appears that Palesch had personality conflicts with numerous co-
workers, this is insufficient to satisfy the threshold level of evidence to go forward with
her case. “Not all unpleasant conduct creates a hostile work environment. Rather the
plaintiff must show that she was singled out because of her gender [or race], and that
the conduct was severe and pervasive.” William v. City of Kansas City, Missouri, 

, 753 (8th Cir. 2000). Palesch offers little more than speculation and
conjecture to make the required connection from the mistreatment she alleges to a
gender or race-based animus. Palesch has failed to create a material issue of fact
concerning whether she was subjected to workplace harassment because of either her
race or gender. See Kneibert v. Thompson Newspapers, Mich., Inc., 

,

                                           -10-
455 (8th Cir. 1997)(party opposing summary judgment must provide sufficient probative
evidence to permit a verdict in its favor rather than relying on conjecture and
speculation).

      The District Court correctly analyzed the evidence and properly viewed it as a
whole in concluding that there was no causal connection between the behavior of
Palesch’s co-workers, Paslesch’s supervisors and prohibited workplace harassment.

      Disparate Treatment

       Title VII prohibits employers from discharging an employee because of race or
gender and from treating employees differently with respect to the “terms, conditions,
or privileges” of employment. See 42 U.S.C. § 2000e-2(a)(1).

      Palesch charges management overreacted to her statement about shooting
someone and disciplined her unfairly until she produced a doctor’s statement. Palesch,
when allowed to return to work, was then allegedly discriminated against by being
placed on Action Plans even though her performance was consistently rated
“successful.” Further, she alleges that she was unlawfully terminated because of her
race and gender.

       A plaintiff may prove allegations of disparate treatment by demonstrating that
she was treated less favorably than similarly situated employees outside the plaintiff’s
protected class. See Barge v. Anheuser-Busch, Inc., 

, 259-60 (8th Cir.
1996); Johnson v. Legal Servs. of Arkansas, Inc., 

, 896 (8th Cir. 1987).
The test for whether employees are “similarly situated” to warrant a comparison to a
plaintiff is a “rigorous” one. Harvey v. Anheuser-Busch, Inc., 

, 972 (8th
Cir. 1994). For discriminatory discipline claims, “[e]mployees are similarly situated
when they ‘are involved in or accused of the same offense and are disciplined in
different ways.’” 

                                          -11-
       Palesch alleged that she was treated differently from five similarly situated
employees. The District Court examined in detail Palesch’s allegations of differential
treatment and found “substantial dissimilarities” between Palesch’s situation and those
of the alleged similarly situated employees. The District Court correctly found that
Palesch failed to produce “specific, tangible evidence” to demonstrate a disparity in
treatment between similarly situated employees. See Rose-Maston v. NME Hosp.,
Inc., 

, 1109 n. 4 (8th Cir. 1998). Summary judgment was properly
granted as to Palesch’s claim of disparate treatment prior to her termination.

       Under all the circumstances, it was reasonable to put Palesch on paid leave until
the extent of her disability from depression could be determined by the physicians. The
Commission could not afford to ignore Palesch’s admitted statement regarding shooting
someone at work. Palesch contends she meant the statement as a joke. Assuming she
did, the seriousness of the statement made was more than adequate justification for her
employer’s response, particularly in view of recent experience nationally with violence
in the workplace.

       Palesch further contends that the solicitation of Dr. Packman’s opinion that she
was not able to perform the essential functions of her job was a pretext for her
termination. Palesch’s own lack of cooperation and the Commission’s inability to get
sufficient information from Palesch’s treating physician made it necessary to solicit an
opinion from a independent psychiatrist.

       “The ultimate question in every employment discrimination case involving a
claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination.” Reeves v. Sanderson Plumbing Products, Inc., 

, 2111,

(2000). There is insufficient evidence in this case to permit a finding
of intentional discrimination with respect to any of the numerous theories espoused by
Palesch. Accordingly, the District Court properly granted summary judgment as to
each and every disparate treatment allegation made by Palesch.

                                          -12-
      Discriminatory and Retaliatory Discharge

       Palesch contends that she was discharged because of her gender and race and
in retaliation for filing EEOC charges against the Commission. Title VII prohibits an
employer from discharging an employee because of his or her race or gender. 42
U.S.C. § 2000e-3(a). Title VII also prohibits employers from discriminating against
or discharging an employee “because [s]he has opposed any practice made an unlawful
employment practice by this subchapter, or because [s]he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under
this subchapter.” 42 U.S.C. § 2000e-3(a).

       The District Court assumed that Palesch established a prima facie case of
discriminatory discharge. Under the familiar burden-shifting analysis established in
McDonnell Douglas Corp. v. Green, 

, 802-05, 

, 1824-26,

(1973), and its progeny, once a plaintiff has set forth a prima facie case
of discrimination, the burden of production shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its actions. 

at 

, 

. If the employer does so, the burden of production shifts back
to the plaintiff to demonstrate that the employer’s proffered reason is a pretext for
unlawful discrimination. St. Mary’s Honor Ctr. v. Hicks, 

, 507-508, 

, 2747-48, 

(1993).

       To support her retaliation claim, Palesch has the burden to show: (1) she engaged
in statutorily protected participation; (2) her employer subsequently took an adverse
employment action; and (3) the adverse action was causally linked to her protected
activity. See Cross v. Cleaver, 

, 1071-72 (8th Cir. 1998); Manning v.
Metropolitan Life Ins. Co., 

, 692 (8th Cir. 1997).

     Dr. Packman’s final opinion, after he was finally provided with all of Palesch’s
medical records, provides a legitimate, non-discriminatory business reason for the

                                          -13-
Commission’s decision to terminate Palesch. Likewise, the Commission’s contention,
with supporting documentation, that Palesch failed to meet the performance
requirements of the job by failing to complete the required number of cases for the
1996-97 production year provides an additional reason for Palesch’s termination and
also supports Dr. Packman’s opinion that Palesch was unable to perform her job.

       Palesch’s effort to show that the Commission’s asserted reasons for her
discharge were pretextual fell short of creating a material issue of fact for the jury.
Palesch attacked the length of Dr. Packman’s interview with her, which was one hour
and twenty minutes. Palesch also attempted to dispute his findings that she was unable
to perform essential job functions and that she posed a threat to herself and others.
These alleged factual disputes fell short of creating a material fact issue as to the issue
of pretext.

      The two explanations offered by the Commission for Palesch’s termination
combined with the lack of any real evidence that any adverse action taken toward
Palesch was motivated by discriminatory animus entitled defendants to summary
judgment.

       As to Palesch’s contention that she was terminated in retaliation for the charges
she filed with the EEOC, the District Court found that she failed to produce any
evidence of a causal connection between these two events other than her own
unsubstantiated opinion testimony. We agree. Palesch’s general allegations and
opinion testimony will not suffice. See Flannery v. Trans World Airlines, Inc., 

, 428 (8th Cir. 1998)(holding plaintiff unable to establish prima facie case of
retaliation where plaintiff’s affidavit was devoid of any specific factual allegations that,
if credited by a trial jury, could support a finding of a causal connection between
alleged adverse actions and filing of complaint); Helfter v. United Parcel Serv., Inc.,

, 616 (8th Cir. 1997)(holding conclusory statements in affidavit, standing


                                            -14-
alone, are insufficient to withstand a properly supported motion for summary
judgment).

       We affirm the District Court’s grant of summary judgment as to Palesch’s
discriminatory discharge and retaliatory discharge claims.

      ADA Claim

       Appellant claimed the state agency defendants discriminated against her on the
basis of her depression in violation of the ADA. This claim is precluded by the Eighth
Circuit’s holding in Alsbrook v. City of Maumelle, 

(8th Cir. 1999) (en
banc), petition for cert. granted in part, 

, and dismissed, 

(2000). Alsbrook establishes the law in this Circuit that the Eleventh Amendment
provides state employers with immunity from suit for ADA violations.7
       Conspiracy Claim

       The District Court ruled as a matter of law that Palesch was precluded from
bringing a conspiracy claim based upon the Supreme Court’s holding that a litigant may
not bring a claim under § 1985(3) to redress violations of Title VII. Great American
Fed. Savings & Loan Assoc. v. Novotny, 

(1979). Palesch contends the
District Court erred because her conspiracy claims go beyond Title VII. Even
assuming that Palesch’s contentions of race and sex based class discrimination are
broader than Title VII, her § 1985(3) claim still fails. Purposeful discrimination must
be established for a party to succeed on a § 1985(3) claim. McIntosh v. Arkansas


      7

       Appellant did not challenge the effect of Alsbrook, but argued in her brief that
the district court should have granted a stay to allow the United States Supreme Court,
which at that time had granted a writ of certiorari, 

, to rule. Since then,
the writ of certiorari has been dismissed by the Court,

(2000), and along
with it, any basis for staying plaintiff’s ADA claims.
                                          -15-
Republican Party - Frank White Election Committee, 

(8th Cir. 1985). As
discussed above, Palesch has failed to produce evidence to support a finding of
purposeful discrimination. Her own conclusory allegations that the individual
defendants were out to get her because she was a white female will not suffice. The
District Court properly dismissed this claim.

      For the foregoing reasons, the decision of the district court is affirmed.

      A true copy.

            ATTEST:

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




                                         -16-