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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
 The Honorable Lawrence L. Piersol, United States District 1

Judge for the District of South Dakota.

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(ADEA) (29 U.S.C. §§ 621-634), in the denial of his application for

sabbatical leave. The district court granted the defendants' motion for 1

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
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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
 For some inexplicable reason, Tebben's sabbatical 2

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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sabbatical. The other sabbatical applicant was Sherry Tebben, a 45-yearold 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
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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
 Roxas's demonstration of discriminatory animus may come 3

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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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
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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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.
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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 
 In a related vein, Roxas points out that two Caucasian 4

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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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
 In the district court, Roxas raised an issue claiming that 5

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). 

 At the request of this court, the parties submitted 6

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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a pretext for unlawful discrimination. Accordingly, the district court's 5

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.
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