_____________
No. 95-2387
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Rodolfo Roxas, *
*
Plaintiff-Appellant, *
*
v. *
*
Presentation College, a South *
Dakota Corporation; Bernadetto *
Bodin, individually; Tim *
Bergstrom, individually; Joyce *
Englert, individually; Joseph * Appeal from the United States
Vogel, individually; Rodney * District Court for the
Fouberg; Harold Higgins, * District of South Dakota.
individually; Cecilia Kitto, *
individually; Patricia Larson, *
individually; Craig McFarland, *
individually; Joan Reichelt, *
individually; Ancilla Russell, *
individually; Katherine Scholtz, *
individually; Susan King-Schutz, *
individually, *
*
Defendants-Appellees. *
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Submitted: February 15, 1996
Filed: July 23, 1996
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Before HANSEN, LAY, and JOHN R. GIBSON, Circuit Judges.
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HANSEN, Circuit Judge.
Rodolfo Roxas brought this action against the defendants alleging
discrimination on the basis of race, national origin, gender, and age, in
violation of 42 U.S.C. § 1981, Title VII (42 U.S.C. § 2000e), and the Age
Discrimination in Employment Act
(ADEA) (29 U.S.C. §§ 621-634), in the denial of his application for
sabbatical leave. The district court1 granted the defendants' motion for
summary judgment because Roxas failed to produce any evidence to show that
the defendants' proffered reasons for the denial were pretexts for unlawful
discrimination. Roxas appeals and we affirm.
I.
Rodolfo Roxas, then a 54-year-old Asian Roman Catholic priest born
in the Philippines, was employed at Presentation College (the College),
located in Aberdeen, South Dakota. The College is a Roman Catholic
institution sponsored by the Presentation Sisters of the Blessed Virgin
Mary and governed by a Board of Trustees (the Board).
Father Roxas was hired by the College in 1977 and worked there 15
consecutive years until 1992, when he resigned. During his tenure at the
College, Roxas performed several duties which were roughly apportioned as
follows: 50 percent to teaching, 25 percent to counseling, and 25 percent
to chaplaincy. During his employment at the College, the Board granted
Roxas a one-year sabbatical leave during the 1984-85 academic year, during
which he obtained a certificate by completing "A Catholic Chaplain Clinical
Pastoral Internship" at St. Elizabeth's Hospital in Washington, D.C.
On September 23, 1991, Dr. Edward Stibili, who was the Academic Dean
of the College, circulated a memorandum to all faculty members, informing
them that requests for sabbatical leave for the 1992-93 academic year were
required to be submitted to him no later than November 4, 1991. The
College's personnel manual
1
The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
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provided certain guidelines concerning sabbatical applications, among them
the proviso that a faculty member had to have worked for seven consecutive
years to be eligible for sabbatical leave. The personnel manual also
provided that a request for sabbatical should be accompanied by a short
statement outlining the purpose of the sabbatical, the type of scholarly
activity that would be undertaken, any sources of extra income during the
sabbatical period, and any other information the applicant deemed
pertinent. Finally, the personnel manual stated that the proposed
sabbatical activity must meet "the needs of the College." (J.A. at 338.)
Roxas submitted what he termed a "Tentative Plan" for sabbatical
leave on November 4, 1991. He set forth "three possibilities" of areas of
interest to him: (1) a Ph.D. in Educational Psychology, (2) a Master/Ph.D.
in Theology, (3) a Sabbatical Certificate. (Id. at 340.) He did not
indicate which program he preferred to pursue, stating that such a
determination depended upon the "kind of support" he received from the
College and that a more definite and detailed plan would be submitted at
a later date if his sabbatical request was granted. (Id. at 342.)
Significantly, Roxas's application was almost identical in terms of
language and content to his application for a sabbatical which was approved
for the 1984-85 academic year.
Two other faculty members, both female Caucasians, also submitted
requests for sabbatical leave in November of 1991. Connie Marheine, a 37-
year-old nursing instructor who had been employed by the College for
approximately three years, requested a two-year sabbatical in order to
obtain her Ph.D. in nursing from the University of Kentucky. Marheine
requested that the College maintain her life and health insurance and pay
her a monthly stipend of $200 during her sabbatical and that the College
forgive the cost of the sabbatical at a rate of 20 percent per year for
each year she taught at the College after returning from the
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sabbatical. The other sabbatical applicant was Sherry Tebben, a 45-year-
old chemistry professor who had been employed at the College for 18 years.
She requested a sabbatical leave at half of her salary in order to complete
her doctoral program.2
At the time these sabbatical requests were made, the College was
undergoing a major change. The College, which had in the past offered only
two-year degrees in nursing, was seeking to upgrade its nursing program to
award a four-year bachelor's degree and to achieve accreditation from the
National Association of Nurses and the State Board of Nursing. One of the
major requirements for accreditation was that members of the nursing
faculty obtain Ph.D.s in nursing.
The Faculty Development Committee of the College (the Committee)
initially reviewed the three sabbatical applications, listing them in order
of priority, and issuing recommendations. The Committee recommended
approving the applications submitted by Marheine and Tebben and denying
Roxas's request. The Committee based its decision with respect to Roxas's
application on the facts that his application was unfocused and that it
placed the burden on the College to determine in what program he should
enroll. Further, the Committee determined that out of the three proposals
Roxas submitted, the only one that would be of any benefit to the College
was the Master/Ph.D. in Theology proposal. Accordingly, the Committee
recommended that Roxas research and re-examine the academic areas he wished
to pursue and submit a more detailed and focused plan the following
academic year.
That same day, Dr. Stibili reviewed the three sabbatical applications
and sent a memorandum of his observations to the
2
For some inexplicable reason, Tebben's sabbatical
application is not included in the record, and we therefore are
unable to further outline the specifics of her sabbatical
application.
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President of the College, Sister Bernadette Bodin. Dr. Stibili noted that
Roxas had received a previous unpaid sabbatical and received "satisfactory,
if uneven teaching evaluations from his students and supervisors," and that
Roxas was qualified to make the sabbatical request. (Id. at 346-47.)
The sabbatical requests were then reviewed by the Administrative
Council, which consisted of the President, the Academic Dean, the Chief
Financial Officer, the Director of Resource Development, the Mission
Effectiveness Coordinator, the Director of Admissions, and one faculty
representative. The Council recommended that Marheine's application be
granted and that Roxas's and Tebben's applications be denied.
Sister Bodin then sent a letter to the Board of Trustees, summarizing
the findings and recommendations of the Faculty Development Committee and
Dean Stibili, and also containing her own views. Sister Bodin recommended
denying Roxas's and Tebben's applications because they did not further the
needs of the College, and approving Marheine's application because her
proposal directly advanced a specific and immediate academic need of the
College.
These recommendations and the three applications for sabbatical were
considered by the Board in an executive session on January 12, 1992. The
Board specifically observed that the Committee had reviewed the
applications, listed them in order of priority, and provided
recommendations on them. The Board, after specifically considering the
needs of the College, approved Marheine's application for a sabbatical and
denied Roxas's and Tebben's applications.
Upon being notified that the Board had denied his sabbatical request,
Roxas applied for a faculty/chaplain position with Teikyo Marycrest
University in Davenport, Iowa (where he is currently
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employed). He later filed a charge of discrimination against the
defendants with the South Dakota Division of Human Rights, contending that
the defendants discriminated against him on the basis of race, national
origin, gender, and age when they denied his sabbatical application. The
South Dakota agency forwarded Roxas's complaint to the EEOC because South
Dakota does not have a statute covering age discrimination. On September
27, 1993, the EEOC determined that the evidence did not support Roxas's
charge and informed him of his right to sue.
Roxas then commenced the instant action, making the same claims he
raised with the EEOC and also alleging that he was constructively
discharged. The defendants moved for summary judgment, contending that
Roxas failed to generate a genuine material factual question on the issue
of pretext. The district court granted the defendants' motion, and Roxas
appeals.
II.
A.
We review the district court's grant of summary judgment de novo,
applying the same standards which that court did. Garner v. Arvin Indus.,
Inc., 77 F.3d 255, 257 (8th Cir. 1996). Summary judgment is appropriate
when the record, viewed in the light most favorable to the nonmoving party,
reveals that there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).
A party seeking to avoid having summary judgment entered against it must
set forth specific facts showing that there is a genuine material issue
that requires a trial. Marts v. Xerox, Inc., 77 F.3d 1109, 1112 (8th Cir.
1996).
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B.
Roxas alleges that the denial of his sabbatical application
constitutes discrimination on the basis of age in violation of the ADEA,
on the basis of race in violation of 42 U.S.C. § 1981, and on the basis of
race, national origin, and gender in violation of Title VII. He relies on
the indirect method of proof outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), to prove each of these claims. Although the McDonnell
Douglas method of analysis arose in the context of Title VII, we have
applied its burden-shifting framework to cases arising under the ADEA and
§ 1981. Garner, 77 F.3d at 257 (ADEA); Shannon v. Ford Motor Co., 72 F.2d
678, 682-83 (8th Cir. 1996) (Title VII and § 1981); Richmond v. Board of
Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir. 1992) (ADEA and
§ 1981). Additionally, we observe that while Roxas's claim is somewhat
different than what we normally encounter in employment discrimination
cases, we have observed that the McDonnell Douglas elements are flexible
enough to encompass a wide variety of circumstances arising in the
employment arena, see Throgmorton v. U.S. Forgecraft Corp., 965 F.2d 643,
646 (8th Cir. 1992), and courts have applied the ADEA and Title VII to
cases involving issues concerning sabbatical leave. See Laffey v. St. Paul
Technical Vocational Ins., No. 92-3231, 1993 WL 152716 (8th Cir. May 13,
1993) (unpublished) (addressing claim for sabbatical leave under Title
VII), cert. denied, 114 S. Ct. 715 (1994); King v. Coppin State College,
No. 94-1523, 1994 WL 712563 at *2 (4th Cir. Dec. 23, 1994) (unpublished)
(denial of sabbatical analyzed for retaliatory discharge under Title VII).
Accordingly, we analyze each of Roxas's discrimination claims under the
McDonnell Douglas inferential framework, tailoring its elements to the
alleged discriminatory conduct before us, a denial of sabbatical leave.
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Father Roxas must first establish a prima facie case of
discrimination. See O'Connor v. Consolidated Coin Caterers Corp., 116 S.
Ct. 1307, 1309-10 (1996) (outlining elements of prima facie case for claim
of race discrimination under Title VII and age discrimination under ADEA);
Ruby v. Springfield R-12 Public School Dist., 76 F.3d 909, 911 (8th Cir.
1996) (elements for racial discrimination under § 1981 and Title VII);
Krenik v. County of Le Sueur, 47 F.3d 953, 957-58 (8th Cir. 1995) (elements
for sex discrimination under Title VII and age discrimination under ADEA);
MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1059-60 (8th Cir. 1988)
(indicating elements for claims of national origin discrimination under
Title VII and § 1981 analyzed same as claims for race discrimination under
same statutes). If Roxas establishes a prima facie case, the burden of
production shifts to the defendants to show that the denial of Roxas's
sabbatical application was for a legitimate, nondiscriminatory reason.
Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 251 (8th Cir. 1995). If
the defendants proffer such a reason, the burden of production shifts back
to Roxas to establish that the proffered reason is actually a mere pretext
for discriminatory animus. Garner, 77 F.3d at 257. "Finally, [Roxas] at
all times carries the burden of persuasion to show that the [denial of his
application for a sabbatical] was motivated by intentional discrimination."
Id.
In the present case, we agree with the district court that Roxas has
satisfied the elements of a prima facie case on his various discrimination
claims. Thus, the burden of production shifts to the defendants to proffer
a legitimate, nondiscriminatory reason for denying Roxas sabbatical leave.
The defendants submit that the Board, as the final decisionmaker on
the sabbatical applications, adopted the determinations and recommendations
made by the Committee. The
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Committee concluded that Roxas's sabbatical application was vague and
unfocused, that it placed the burden on the College to determine which
program Roxas should pursue, and that a decision could not be made based
on the information Roxas had provided. Further, and more importantly, the
defendants note that the College was seeking to upgrade its nursing program
to a four-year bachelor's degree program and was seeking commensurate
accreditation with the National Association of Nurses and the State Board
of Nursing. In order to achieve this goal, the College needed to have its
nursing faculty upgrade their academic credentials by obtaining Ph.D.s in
the field. None of the options Roxas set forth in his application assisted
the College in achieving this end, while Connie Marheine's application for
sabbatical specifically and immediately furthered this interest. For that
matter, only one of Roxas's proposals would have been of any benefit to the
College at all -- the Master/Ph.D. degree in Theology.
Each of the reasons advanced by the College is legitimate and
nondiscriminatory. The burden, therefore, shifts back to Roxas to produce
sufficient evidence to demonstrate the existence of a factual issue that
these proffered reasons are a pretext for invidious discrimination. This
burden will not be met by simply showing that the reason advanced by the
employer was false; rather, Roxas must demonstrate that a discriminatory
animus lies behind the defendants' neutral explanations. Hutson v.
McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995).3
3
Roxas's demonstration of discriminatory animus may come
from evidence offered during the presentation of his prima facie
case. See Rothmeier v. Investment Advisers, Inc., 85 F.2d 1328,
1336-37 (8th Cir. 1996) ("Consequently, the rule in this Circuit
is that an age-discrimination plaintiff can avoid summary
judgment only if the evidence considered in its entirety (1)
creates a fact issue as to whether the employer's proffered
reasons are pretextual and (2) creates a reasonable inference
that age was a determinative factor in the adverse employment
decision. The second part of this test
sometimes may be satisfied without additional evidence where the
overall strength of the prima facie case and the evidence of
pretext `suffice[s] to show intentional discrimination.' The
focus, however, always remains on the ultimate question of law:
whether the evidence is sufficient to create a genuine issue of
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The evidence Roxas submits to carry his burden falls far short of the
mark. First, Roxas claims that certain statistics illustrate that female
Caucasians in their "early forties or younger" are given preferential
treatment over other minority applicants. (Roxas Br. at 6.) However,
Roxas goes no further with this contention, developing no argument and
citing no language from case law in support of this claim. Although we
have held that statistics can be useful in determining whether a proffered
reason is pretextual, in order to do so such statistics must "analyze the
treatment of comparable employees." Hutson, 63 F.3d at 777. After
carefully reviewing the record citations supplied by Roxas, we conclude
that his statistical evidence does not meet this standard.
Second, Roxas claims that the language he used in his 1991 sabbatical
application was identical, or nearly identical, to that contained in his
application for sabbatical during the 1984-85 academic year, thereby
undermining the defendants' claim that his application was unfocused.
However, the defendants contend, and Roxas does not claim otherwise, that
the circumstances at the College had changed markedly in 1991 from 1984;
specifically, the College was seeking accreditation of its four-year
nursing program and pursuant thereto had begun placing an emphasis on
having nursing department faculty members obtain Ph.D.s. Thus, the marked
difference in circumstances between the two years makes any discrepancy in
the treatment of Roxas's second application unremarkable, and certainly not
evidence of discrimination.
fact as to whether the employer intentionally discriminated
against the plaintiff because of the plaintiff's age.") (quoting
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993)).
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Third, Roxas makes much of the fact that Marheine had not been on the
faculty of the College long enough to qualify for a sabbatical under the
guidelines delineated in the College's personnel manual. The guidelines
for sabbatical then in place provided that an applicant must "have worked
for seven consecutive years prior to application" to be eligible for
sabbatical leave. (J.A. at 338.) The personnel manual also indicated that
"[a] sabbatical leave shall normally be for a term of one year at one-half
salary . . . ." (Id.) Marheine's approved request included a stipend of
$200 per month for 24 months of leave with a provision that the debt so
incurred be paid back at the rate of 20 percent per year for each year
taught at the College after the leave. Sister Bodine characterized
Marheine's proposal as "minimum money up front which will be paid back
either in service or in money" and as an "unpaid leave of absence." (Id.
at 348.) That the defendants overlooked the seven-year employment
requirement in order to grant Marheine sabbatical leave readily
demonstrates, according to Roxas, the College's practice of specifically
favoring Caucasian females. However, as Roxas himself admits, these
guidelines are simply that -- guidelines -- and Roxas offers no proof that
they were ever deemed conclusively binding when the College considered an
application for a sabbatical. In fact, the record demonstrates that "the
needs of the College" was the foremost concern when sabbatical applications
were considered. (J.A. at 338, 349.) Thus, given the needs of the College,
which have been outlined in detail above, the Board was presumably willing
to overlook Marheine's relatively short length of employment in order to
satisfy the College's immediate need for a
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nursing faculty with Ph.D.s, at minimum expense to the College.4
Finally, Roxas claims certain statements allegedly made by Dean
Stibili and the President, Sister Bodin, illustrate the College's bias
against him because of his age and cultural heritage. The decisionmaking
power regarding the sabbatical applications rested entirely with the Board,
of which neither the President nor the Dean was a member. Roxas has
offered no evidence linking these alleged statements to his sabbatical
application or to the Board's decision to deny his application and thus,
the purported statements are not evidence of pretext. See Hutson, 63 F.3d
at 779 (holding that statements made by individuals who were not final
decisionmakers with respect to decision to terminate do not establish
pretext because no evidence of causal nexus). Neither has he shown that
the Dean or the President made any misrepresentations concerning him to the
Board. Additionally, there is no evidence that the President or Dean of
the College made any discriminatory comments about Roxas to members of the
Board in an effort to influence the Board concerning Roxas's qualifications
for a sabbatical, or that the Board formed its judgment based on such
statements. See Ryther v. KARE 11, 84 F.3d 1074, 1085 (8th Cir. 1996).
Roxas thus has failed to present any evidence which would create a
genuine issue of material fact that the College's proffered reasons for
denying his application for sabbatical were
4
In a related vein, Roxas points out that two Caucasian
female faculty members were granted sabbatical leave, one before
Roxas's 1991 application and the other after, and these
individuals were not connected with the College's nursing
program. However, neither of these individuals applied for
sabbatical leave the same year that Roxas did, and accordingly
they are inapposite to our analysis.
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a pretext for unlawful discrimination.5 Accordingly, the district court's
grant of summary judgment to the defendants was proper.6
IV.
For the reasons enumerated above, we affirm the judgment of the
district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
5
In the district court, Roxas raised an issue claiming that
the College harassed him following the denial of his application
for sabbatical, which culminated with his being constructively
discharged. It is unclear from Roxas's brief whether he is
raising that issue on appeal. In any event, that issue is not
properly before us because Roxas failed to allege a claim of
constructive discharge in his EEOC complaint, and the
constructive discharge claim is not "like or reasonably related
to" the claim of denial of sabbatical that was raised in the EEOC
complaint. See Williams v. Little Rock Mun. Water Works, 21 F.3d
218, 222-23 (8th Cir. 1994) (claim not included in EEOC complaint
not cognizable in federal court unless claim meets standard
quoted above).
6
At the request of this court, the parties submitted
supplemental briefing on the issue of whether resolution of the
employment issues in this case would constitute excessive
entanglement under the First Amendment. However, the defendants
failed to convince us that our consideration of Roxas's claims
would risk excessive entanglement, and accordingly we proceeded
to address the merits of Roxas's discrimination claims. See
Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468, 472
(8th Cir. 1993) ("The Synod has not offered any religious
explanation for its actions which might entangle the court in a
religious controversy in violation of the First Amendment.").
See also Gargano v. Diocese of Rockville Center, 80 F.3d 87, 90
(2d Cir. 1996).
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