United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 09-2004
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Amy Elam, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Regions Financial Corporation; *
Regions Financial (DE), Inc.; *
Roxanne Rutherford; Carol *
Knopic, *
*
Appellees. *
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Submitted: January 14, 2010
Filed: April 19, 2010
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Before GRUENDER and SHEPHERD, Circuit Judges, and LANGE,1 District Judge.
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GRUENDER, Circuit Judge.
Amy Elam brought claims pursuant to Title VII of the Civil Rights Act,
42 U.S.C. § 2000e et seq., the Pregnancy Discrimination Act (PDA), 42
1
The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota, sitting by designation.
U.S.C. § 2000e(k), and the Iowa Civil Rights Act of 1965 (ICRA), Iowa Code § 216.1
et seq., alleging that her employer, Regions Financial Corporation, and her
supervisors, Roxanne Rutherford and Carol Knopic, discriminated against her because
of her pregnancy. The district court2 granted summary judgment in favor of the
defendants on all claims. For the following reasons, we affirm.
I. BACKGROUND
Because we are reviewing a grant of summary judgment, we describe the facts
in the light most favorable to Elam. Regions hired Elam as a senior bank teller in its
West Des Moines, Iowa branch. She began work at the branch on July 16, 2005.
From the start, she experienced frequent vomiting at work between approximately
8:00 and 10:30 a.m., causing her to abandon her teller station four to eleven times
each morning to rush to the restroom. Rutherford, Elam’s immediate supervisor,
suggested that she see a doctor about her illness. Elam learned that she was pregnant
and experiencing morning sickness. She informed Rutherford of her pregnancy.
Rutherford contacted Gloria Larkin, a member of Regions’s human resources
department, and asked how to accommodate Elam’s condition. Larkin suggested that
Elam could come to work late “for a couple of weeks,” noting that as long as Elam
continued to work thirty hours per week she would be eligible for full-time benefits.
Larkin also advised Rutherford to try to implement any accommodations Elam’s
doctor recommended. Elam’s doctor recommended that Elam be allowed to keep a
beverage at her teller station and be excused from work as necessary to deal with her
sickness. Regions allowed Elam to keep a beverage at her station. Regions also
offered Elam the opportunity to come to work each day after her morning sickness
subsided, which Elam rejected.
2
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
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On July 25, Regions sent Elam to its Indianola, Iowa branch for teller training.
After completing the training, Elam returned to the West Des Moines branch where
her morning sickness continued. On one occasion, Elam abandoned her teller station
in the middle of a transaction with a customer. Whenever Elam left her station, other
tellers had to stop performing their own work in order to cover Elam’s station.
Regions experienced additional problems with Elam’s job performance. Elam
failed to secure the cash drawer at her teller station, which she attributes to leaving her
station suddenly because of morning sickness. She also left unattended cash on the
counter of her station, laid her head on the counter at her station, used her cell phone
at her station, and failed to properly document customer transactions. Regions
received complaints from other tellers about covering for Elam when she left her
station. The tellers also reported that they were frustrated with Elam because she
regularly needed help processing transactions.
On August 18, Knopic, the branch sales manager, met with Elam to discuss
Elam’s failing to lock her cash drawer when she was not at her station, leaving cash
unattended on the counter of her station, and using her cell phone at work. Knopic
gave Elam a memorandum of understanding, which indicated that Elam must
immediately stop this behavior and that “further disciplinary action up to and
including termination” could result if it continued. On August 23, Knopic met with
Elam again to discuss her inability to “fulfill her job requirements” due to her frequent
absences from her teller station. Knopic reiterated that Elam could report for work
later in the morning after her sickness subsided. Knopic also requested that Elam ask
her doctor if there were any other accommodations that could be made to avoid the
frequent work interruptions, but Elam did not provide any additional
recommendations. Knopic gave Elam a written warning, which indicated that Elam
could be terminated if the issues were not resolved.
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On September 14, Elam was late for a mandatory training meeting. On
September 15, Knopic e-mailed Richard Tyler, a member of Regions’s human
resources department, to ask “if anything can be done to let [Elam] go.” Referring to
Elam as the “(pregnant girl) teller that I am having problems with,” Knopic informed
Tyler of Elam’s frequent absences from her teller station due to her sickness,
inappropriate activities at work, and poor work performance. Knopic stated that other
tellers were frustrated with Elam’s performance and that Knopic did not want to lose
them. Tyler suggested that Knopic prepare a disciplinary action form listing every
instance of substandard behavior and performance. However, he made it clear that he
would not approve the termination of Elam’s employment without reviewing the form
to ensure that the “justification for termination will hold up due to the fact that [Elam]
is pregnant.” After receiving Tyler’s approval, Knopic terminated Elam’s
employment on September 16.
Elam filed suit against Regions, Rutherford, and Knopic, alleging that they
discriminated against her because of her pregnancy. The defendants filed a motion
for summary judgment, which the district court granted. Elam filed a motion to alter
or amend the judgment, which the district court denied. Elam appeals.
II. DISCUSSION
We review the district court’s grant of summary judgment de novo, viewing the
evidence and the reasonable inferences that may be drawn from the evidence in the
light most favorable to Elam. See Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 850 (8th
Cir. 2005). However, these inferences must be “reasonable inferences—those that can
be drawn from the evidence without resort to speculation.” P.H. v. Sch. Dist. of
Kansas City, 265 F.3d 653, 658 (8th Cir. 2001) (quoting Sprenger v. Fed. Home Loan
Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir. 2001)). Furthermore, “[o]nly
disputes over facts that might affect the outcome of the suit . . . will properly preclude
the entry of summary judgment.” Id. (alteration in original) (quoting Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “The mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Bass v. SBC
Commc’ns. Inc., 418 F.3d 870, 873 (8th Cir. 2005) (quoting Anderson, 477 U.S. at
252).
Elam’s case may survive the defendants’ motion for summary judgment on her
pregnancy discrimination claims in one of two ways.3 See McCullough v. Univ. of
Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir. 2009). First, Elam may produce direct
evidence of discrimination. See id. Alternatively, she may avoid summary judgment
by “creating an inference of unlawful discrimination under the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”
See McGinnis v. Union Pac. R.R., 496 F.3d 868, 873 (8th Cir. 2007) (citing Russell
v. City of Kansas City, 414 F.3d 863, 866-67 (8th Cir. 2005)). Elam purports to have
demonstrated both direct evidence of pregnancy discrimination and an inference of
unlawful discrimination based on her pregnancy under McDonnell Douglas.
Direct evidence of discrimination is “evidence showing a specific link between
the alleged discriminatory animus and the challenged decision, sufficient to support
a finding by a reasonable fact finder that an illegitimate criterion actually motivated
the adverse employment action.” McCullough, 559 F.3d at 860 (quoting Russell, 414
F.3d at 866). Direct evidence is distinguished from “stray remarks in the workplace,
statements by nondecisionmakers, or statements by decisionmakers unrelated to the
decisional process.” Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122, 1126
(8th Cir. 2000) (quoting Fast v. S. Union Co., 149 F.3d 885, 890 (8th Cir. 1998)).
Elam claims that Rutherford’s reference to her as “pregnant,” Knopic’s reference to
3
Elam’s Title VII sex discrimination claim is based solely on alleged
discrimination because of her pregnancy. Because Elam presents no separate
arguments under ICRA, we address her ICRA claims together with her Title VII
claims. See Hannoon v. Fawn Eng’g Corp., 324 F.3d 1041, 1046 (8th Cir. 2003).
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her as the “(pregnant girl) teller,” Regions’s proposal to allow her to report to work
later each morning, and the August 23 written warning reprimanding her for being
unable to perform her job duties all provide direct evidence of discrimination.
We disagree.
Rutherford described Elam as pregnant when she sought guidance from Larkin
on how to accommodate Elam’s morning sickness. Reference to protected status
“without reflecting bias is not direct evidence of discrimination.” Fjelsta v. Zogg
Dermatology, PLC, 488 F.3d 804, 810 (8th Cir. 2007) (citing Deneen v. Nw. Airlines,
Inc., 132 F.3d 431, 436 (8th Cir. 1998)). Rutherford’s use of the word “pregnant” did
not reflect any bias against Elam; rather, it merely communicated Elam’s condition
to Larkin in an effort to determine how to accommodate Elam. Similarly, Knopic’s
reference to Elam as the “(pregnant girl) teller” in her e-mail to Tyler did not reflect
any bias against Elam based on her pregnancy. The remark did not indicate a negative
attitude toward Elam’s pregnancy. See id. Moreover, concern over the rights of a
protected employee “should be regarded as a natural reaction to the ever-present threat
of litigation attendant upon terminating [a protected] employee,” not evidence of
discrimination. See Bashara v. Black Hills Corp., 26 F.3d 820, 824 (8th Cir. 1994).
Elam argues that Knopic’s reference to her as the “(pregnant girl) teller” shows that
she was displeased with Elam’s pregnancy, not her performance. However, Elam
points to no evidence to support her conclusion. We will not resort to speculation in
order to make such a remote inference. See P.H., 265 F.3d at 658.
Elam’s claim that Regions’s proposal to allow her to report to work later each
morning provides direct evidence of pregnancy discrimination also fails. Elam argues
that Regions’s accommodating offer was actually an attempt to force her to work less
than thirty hours per week in order to deny her benefits associated with full-time
employment. However, even viewed in the light most favorable to Elam, Regions’s
offer does not reflect a discriminatory animus toward Elam based on her pregnancy.
Regions did not forcibly cut Elam’s hours. Rather, Regions suggested that she could
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report to work each morning after her sickness subsided. Regions never
recommended that she work less than the thirty hours per week required to maintain
her benefits. Moreover, Elam provides no link between Regions’s offer and the
ultimate decision to dismiss her, which she claims was based on pregnancy
discrimination. See McCullough, 559 F.3d at 860. Regions’s offer does not constitute
direct evidence of discrimination.
The August 23 written warning also does not contain direct evidence of
discrimination. The written warning reprimanded Elam for being unable to perform
her job duties because of her frequent absences from her teller station. Title VII, as
amended by the PDA, provides that pregnant women must “be treated the same for all
employment-related purposes . . . as other persons not so affected but similar in their
ability or inability to work.” Deneen, 132 F.3d at 435 (quoting 42 U.S.C. § 2000e(k)).
“The PDA ‘does not create substantive rights to preferential treatment.’” Id. at 436
(quoting Lang v. Star Herald, 107 F.3d 1308, 1312 (8th Cir. 1997)). “On the
contrary, the PDA allows ‘employers [to] treat pregnant women as badly as they treat
similarly affected but nonpregnant employees.’” Id. at 436-37 (alteration in original)
(quoting Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994)). Regions
was not required to overlook Elam’s frequent absences from work, even if the
absences were caused by her pregnancy, unless it overlooked the frequent absences
of other employees. See id. at 437 (citing Troupe, 20 F.3d at 738). Elam presented
no evidence that nonpregnant employees were allowed to leave their work stations
abruptly at frequent intervals every morning. Instead, Elam erroneously suggests that
Regions’s refusal to give her special treatment was direct evidence of discrimination.
Because Elam did not present direct evidence of pregnancy discrimination, we
analyze her claims under the McDonnell Douglas burden-shifting framework. Under
McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination.
Rodgers, 417 F.3d at 850. To establish a prima facie case, the plaintiff “must show
that: (1) she is a member of a protected group; (2) she was qualified for her position;
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(3) she was discharged; and (4) the discharge occurred under circumstances giving
rise to an inference of discrimination.” Id. Once the plaintiff establishes a prima facie
case of discrimination, the burden of production shifts to the defendant to articulate
a “non-discriminatory, legitimate justification for its conduct, which rebuts the
employee’s prima facie case.” Id. (quoting Sprenger, 253 F.3d at 1111). If the
employer meets its burden, the plaintiff must “produce evidence sufficient to create
a genuine issue of material fact regarding whether [the employer’s] proffered
nondiscriminatory reason is a pretext for discrimination.” Id. at 853.
Assuming, without deciding, that Elam presented a prima facie case,4 Regions
has provided a lengthy list of nondiscriminatory, legitimate reasons for terminating
Elam’s employment. Regions’s proffered reasons include Elam’s frequent absences
4
The district court found that Elam could not establish a prima facie case of
discrimination because she did not show that she was qualified for the senior teller
position. The parties suggest that the question whether Elam was qualified for the
position depends on whether she met Regions’s legitimate expectations. See Zhuang
v. Datacard Corp., 414 F.3d 849, 854 (8th Cir. 2005) (describing the qualified
element as “meeting the legitimate expectations of her employer”). In this case, the
relevant expectations happen to coincide with the reasons Regions gave for
terminating Elam’s employment. We note, however, that there appears to be a tension
in our circuit’s jurisprudence regarding whether a court may consider an employer’s
reasons for discharging an employee when considering the qualified element of the
prima facie case. Compare Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir.
2010) (“Lake establishes his prima facie case if, setting aside Yellow’s reason for
firing him, he was otherwise meeting expectations or otherwise qualified.” (citing
Riley v. Lance, Inc., 518 F.3d 996, 1000 (8th Cir. 2008))), with Zhuang, 414 F.3d at
855 (considering the reasons the employer gave for firing the employee when
evaluating the qualified element of the prima facie case), Whitley v. Peer Review Sys.,
Inc., 221 F.3d 1053, 1055 (8th Cir. 2000) (same), Nesser v. Trans World Airlines, Inc.,
160 F.3d 442, 445-46 (8th Cir. 1998) (same), and Moyer v. DVA Renal Healthcare,
Inc., No. 09-1660, 2010 WL 1190702, at *2 (8th Cir. Mar. 30, 2010) (unpublished)
(same). Because we assume that Elam has established the prima facie case, we need
not address this issue.
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from her teller station, leaving her cash drawer unlocked and cash unattended, using
her cell phone at work, laying her head down at her station, arriving late to a training
meeting, and difficulty documenting transactions. Accordingly, the burden ultimately
rests on Elam to show “a genuine issue for trial about whether the employer acted
based on an intent to discriminate rather than on a good-faith belief that the employee
committed misconduct justifying termination.” See McCullough, 559 F.3d at 862
(citing Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 811 (8th Cir. 2005)).
Elam claims that she has shown pretext through her evidence of: (1) Knopic
and Rutherford’s reference to her protected status, (2) “genuine issues of fact
concerning the extent of [Elam’s] alleged misconduct,” (3) disparate treatment of her
and other employees, and (4) Regions’s shifting reasons for discharging her. We
affirm the district court’s grant of summary judgment to Regions because Elam failed
to raise a triable question of material fact as to whether Regions’s reasons for
terminating her employment were pretext for discrimination.
Elam has not presented sufficient evidence to allow a reasonable jury to
conclude that Knopic or Rutherford’s reference to Elam’s protected status showed an
intent to discriminate against Elam. Knopic and Rutherford’s remarks simply identify
Elam’s condition while seeking advice from Regions’s human resources department.
The mere reference to her protected status does not reflect any intent to discriminate.
Again, such an inference would be pure speculation, which is insufficient to avoid
summary judgment. See P.H., 265 F.3d at 658.
Elam argues that there are genuine issues of fact concerning some instances of
her alleged misconduct. In reciting the facts in the light most favorable to Elam, we
have already eliminated any alleged misconduct for which she has presented contrary
evidence. Still, Elam does not dispute that she left her teller station four to eleven
times every morning, left her cash drawer unlocked and cash unattended, used her cell
phone during working hours, laid her head down at her station, arrived late to a
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training meeting, and had problems documenting customer transactions. We do not
“sit as super-personnel departments reviewing the wisdom or fairness of the business
judgments made by employers, except to the extent that those judgments involve
intentional discrimination.” Rodgers, 417 F.3d at 854 (quoting Hutson v. McDonnell
Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995)). “[O]nly disputes over facts that
might affect the outcome of the suit . . . will properly preclude the entry of summary
judgment.” P.H., 265 F.3d at 658 (quoting Anderson, 477 U.S. at 248). Because
Elam admits to numerous acts of misconduct that provide a “good-faith” basis for her
discharge and she does not argue that any of the challenged alleged misconduct shows
an intent to discriminate, see McCullough, 559 F.3d at 861-62, any disputes over other
instances of alleged misconduct are insufficient to create a genuine question of fact
on pretext.
Elam also attempts to prove pretext by demonstrating that Regions treated her
less favorably than other similarly situated employees outside of her protected class.
She claims that Amber Showers, a teller, left her teller keys on the counter and left
money unattended. She also claims that Showers and another teller, Matt Bean, used
their cell phones at work. But she failed to show that she was “similarly situated in
all relevant respects” to Showers or Bean. See Rodgers, 417 F.3d at 853 (citing
Wheeler v. Aventis Pharms., 360 F.3d 853, 857 (8th Cir. 2004)). To be probative of
pretext, the alleged misconduct of other employees must be of “comparable
seriousness.” Id. (quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972-73 (8th
Cir. 1994)). Although Showers and Bean allegedly committed two of the same acts
as Elam, Elam’s record of numerous other acts of misconduct—abandoning her work
station frequently, laying her head down at her station, arriving late to a training
meeting, and having problems documenting customer transactions—sets her apart.
See Tolen v. Ashcroft, 377 F.3d 879, 883 (8th Cir. 2004) (“[T]he frequency of Tolen’s
misconduct distinguishes him from his offered comparables.”); see also Ward v.
Procter & Gamble Paper Prods. Co., 111 F.3d 558, 561 (8th Cir. 1997). Moreover,
Elam did not present any evidence that Regions supervisors were aware of the alleged
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misconduct of Showers or Bean. See Hervey v. County of Koochiching, 527 F.3d 711,
720 (8th Cir. 2008) (“[T]he individuals used for comparison must have dealt with the
same supervisor, have been subject to the same standards, and engaged in the same
conduct without any mitigating or distinguishing circumstances.” (quoting Clark v.
Runyon, 218 F.3d 915, 918 (8th Cir. 2000)), cert. denied, 555 U.S. ---, 129 S. Ct. 1003
(2009); see also Clearwater, 231 F.3d at 1127. Because Elam has not shown that she
was “similarly situated in all relevant respects” to Showers or Bean, she has failed to
raise a triable question of fact as to pretext.
Finally, Elam claims that the reasons Regions gave for discharging her shifted
over time. She notes that Knopic’s e-mail to Tyler documented Elam’s absence from
her station, inappropriate work activities, and poor work performance. In response,
Tyler suggested that if it was determined that Knopic’s stated grounds were sufficient
to justify discharging Elam, Knopic should tell Elam that it “was a mishire situation
and that she was not a match for the job.” While “‘[s]ubstantial changes over time in
the employer’s proffered reason for its employment decision support a finding of
pretext,’ this does not mean that an employer cannot elaborate on its proffered
reason.” Rodgers, 417 F.3d at 855 (citation omitted) (citing Smith v. Allen Health
Sys., Inc., 302 F.3d 827, 835 (8th Cir. 2002)). In providing further detail of her
reasons for discharging Elam, Knopic merely elaborated on why this was a “mishire
situation” and Elam was “not a match for the job.” Furthermore, these reasons are
consistent with Elam’s poor performance as detailed in the memorandum of
understanding and written warning, which Knopic provided to Elam.
III. CONCLUSION
We conclude that Elam failed to demonstrate direct evidence of discrimination.
Even assuming that Elam established a prima facie case of discrimination, she failed
to present sufficient evidence to show that Regions’s reasons for terminating her
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employment were pretext for discrimination. As a result, we affirm the judgment of
the district court.
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