_____________ No. 95-2387

_____________ 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. *

_____________ Submitted: February 15, 1996 Filed: July 23, 1996

_____________ Before HANSEN, LAY, and JOHN R. GIBSON, Circuit Judges.

_____________ HANSEN, Circuit Judge.

Rodol fo Roxas brought this action against the defendants allegin g 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.
-2- (ADEA) (2 9 U.S.C. §§ 621-634), in the denial of his application fo r 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 unlawfu l discrimination. Roxas appeals and we affirm.

I.

Rodolfo Roxas, then a 54-year-old Asian Roman Catholic priest bor n in the Philippines, was employed at Presentation College (the College) , located i n Aberdeen, South Dakota. The College is a Roman Catholi c instit ution sponsored by the Presentation Sisters of the Blessed Virgi n Mary and governed by a Board of Trustees (the Board).

Father Ro xas was hired by the College in 1977 and worked there 1 5 consecutive years unt il 1992, when he resigned. During his tenure at the College, Roxas perfor med several duties which were roughly apportioned as follows: 50 percent t o teaching, 25 percent to counseling, and 25 percent to chaplaincy. During his employment at the College, the Board grante d Roxas a one-year sabbatical leave during the 198 4-85 academic year, during which he obtained a certificate by completing "A Catholic Chaplain Clinica l Pastoral Internship" at St. Elizabeth's Hospital in Washington, D.C.

On September 23, 1991, Dr. Edward St ibili, who was the Academic Dean of the College, circu lated a memorandum to all faculty members, informing them that requests for sabbatical leave for the 1992-93 academic year were required t o be submitted to him no later than November 4, 1991. Th e College's personnel manual

### -3-

provided certain guidelines concerning sabbatica l applications, among them the proviso that a faculty member had to have wo rked for seven consecutive years to b e eligible for sabbatical leave. The personnel manual als o provided that a request for sabbatical should be accompanied by a shor t statement outlining the purpose of the sabbatical, the type of scholarly activity that would b e undertaken, any sources of extra income during the sab batical period, and any other information the applicant deeme d pertin ent. Finally, the personnel manual stated that the propose d sabbatical activity must meet "the needs of the College." (J.A. at 338.)

Roxas submitted what he termed a "Tentative Plan" for sabbatica l 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 Theolo gy, (3) a Sabbatical Certificate. ( Id. at 340.) He did no t indicate which program he preferred to pursue, stating that such a determination depended upon the "kind of support" he received from th e 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. ) Signi ficantly, Roxas's application was almost identical in terms o f language and content to his application for a sabbatical which was approve d for the 1984-85 academic year.

Two o ther faculty members, both female Caucasians, also submitte d requests for sabbatical leave in November of 199 1. Connie Marheine, a 37- year -old nursing instructor who had been employed by the College fo r approx imately three years, requested a two-year sabbatical in order t o obtai n her Ph.D. in nursing from the University of Kentucky. Marhein e requested that the Co llege maintain her life and health insurance and pay her a monthly stipend of $200 during her sabbatical and that the College forgi ve the cost of the sabbatical at a rate of 20 percent per year fo r 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.
-4- sabbatical. The othe r 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 complet e her doctoral program. 2

At the time these sabbatical requests were made, the College wa s undergoing a major change. The College, which had in the past offered onl y two-year degrees in nursing, was seeking to upgr ade its nursing program to award a four-year bac helor's degree and to achieve accreditation from the National Association of Nurses and the State Boa rd of Nursing. One of the major requirements for accreditation was that members of the nursin g 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 orde r of priority, and issuing recommendations. The Committee recommende d approv ing the applications submitted by Marheine and Tebben and denyin g Roxas's request. The Committee based its decisi on with respect to Roxas's application on the facts that his application was unfocused and that i t placed th e burden on the College to determine in what program he shoul d 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 th e Master/Ph.D. in Theology proposal. Accordingly, the Committe e recommended that Roxas research and re-examine the academic areas he wishe d to pursue and submit a more detailed and focused plan the followin g academic year.
That same day, Dr. Stibili reviewed the three sabbatical applic ations and sent a memorandum of his observations to the

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President of the College, Sister Bernadette Bodin. Dr. Stibili noted tha t Roxas had received a previous unpaid sabbatical and received "satisfactory , if uneven teaching evaluations from his students and supervisors," and tha t Roxas was qualified to make the sabbatical request. ( Id. at 346-47.)

The sabbatical requests were then reviewed by the Administrativ e Cou ncil, which consisted of the President, the Academic Dean, the Chie f Fi nancial Officer, the Director of Resource Development, the Missio n Effe ctiveness Coordinator, the Director of Admissions, and one facult y representative. The Council recommended that Marheine's application b e granted and that Roxas's and Tebben's applications be denied.

Sister Bodin then sent a letter to the Board of Trustees, summa rizing the findings and reco mmendations of the Faculty Development Committee and Dean Stibili, and also containing her own views. Sister Bodin recommended denying Roxas's and Tebben's applications becaus e they did not further the needs of the College, and approving Marheine's application because he r proposal directly advanced a specific and immediate academic need of the College.

These recommendations and the three applications for sabbatical were considered by the Boa rd in an executive session on January 12, 1992. The Board specifically observed that the Committee had reviewed th e ap plications, listed them in order of priority, and provide d
recomm endations on them. The Board, after specifically considering th e needs of the College, approved Marheine's applic ation for a sabbatical and denied Roxas's and Tebben's applications.
Upon being notified that the Board had denied his sabbatical re quest, Roxas applied for a faculty/chaplain position with Teikyo Marycres t University in Davenport, Iowa (where he is currently

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emplo yed). He later filed a charge of discrimination against th e defendants with the South Dakota Division of Hum an Rights, contending that the defendants discriminated against him on the basis of race, nationa l origin, gender, and a ge when they denied his sabbatical application. The South Dakota agency f orwarded 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 th en commenced the instant action, making the same claims h e raise d with the EEOC and also alleging that he was constructivel y discha rged. The defendants moved for summary judgment, contending tha t Roxas failed to gener ate a genuine material factual question on the issue of pretext. The dist rict court granted the defendants' motion, and Roxas appeals.

II. A.

We re view 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 movin g party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c)

. Aparty seeking to avoid having summary judgment entered against it must set forth specific facts showing that there is a genuine material issu e that requires a trial. Marts v. Xerox, Inc. , 77 F.3d 1109, 1112 (8th Cir. 1996).

### -7- B.

Roxas a lleges that the denial of his sabbatical applicatio n 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 o f Title VII. He relies on the indirect method of proof outlined in McDonne ll Douglas Corp. v. Green , 411 U.S. 792 (1973), to prove each of these claims. Although the McDonnel l Dou glas method of analysis arose in the context of Title VII, we hav e applied its burden-sh ifting 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 an d § 1981). Additionally, we observe that while Roxas's claim is somewha t diff erent than what we normally encounter in employment discriminatio n cases, we have observed that the McDonnell Douglas elements are flexible enough t o encompass a wide variety of circumstances arising in th e 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 t o
cases involving issues concerning sabbatical leave. See Laffey v. St. Pau l Technical Vocational Ins. , No. 92-3231, 1993 WL 152716 (8th Cir. May 13, 1993 ) (unpublished) (addressing claim for sabbatical leave under Titl e 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 d ischarge under Title VII). Accord ingly, we analyze each of Roxas's discrimination claims under th e McDo nnell Douglas inferential framework, tailoring its elements to th e alleged discriminatory conduct before us, a denial of sabbatical leave.

### -8- Father Roxas must first establish a prima facie case o f 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 d iscrimination 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) (element s for sex discrimination under Title VII and age d iscrimination under ADEA); MacDissi v. Valmont Indus., Inc. , 856 F.2d 1054, 1059-60 (8th Cir. 1988) (indicating elements for claims of national origin discrimination unde r Title VII and § 1981 analyzed same as claims for race discrimination under
same stat utes). If Roxas establishes a prima facie case, the burden o f produ ction shifts to the defendants to show that the denial of Roxas' s sabb atical 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 burdenof production shifts back to Roxas to establish that the proffered reason is actually a mere pretext for discriminatory an imus. Garner , 77 F.3d at 257. "Finally, [Roxas] at all times carries the burden of persuasion to sh ow that the [denial of his application for a sabbatical] was motivated by intentional discrimination. " Id.
In the present case, we agree with t he 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 proffe r a legitimate, nondiscriminatory reason for denyi ng Roxas sabbatical leave.

The defen dants submit that the Board, as the final decisionmaker on the sabbatical applications, adopted the determinations and recommendation s 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
-9- Committ ee concluded that Roxas's sabbatical application was vague an d unfoc used, that it placed the burden on the College to determine whic h programRoxas 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 progra m to a f our-year bachelor's degree program and was seeking commensurat e accreditation with th e National Association of Nurses and the State Board of Nursing. In order to achieve this goal, the College needed to have its nursing faculty upgra de their academic credentials by obtaining Ph.D.s in the field. None of the options Roxas set forth in his application assiste d the College in achieving this end, while Connie Marheine's application for sabbatical specifically and immediately furthere d this interest. For that matter, only one of Roxas's proposals would have been of any benefit to th e College at all -- the Master/Ph.D. degree in Theology.

Eac h of the reasons advanced by the College is legitimate an d nondiscriminatory. The burden, therefore, shift s back to Roxas to produce sufficient evidence to demonstrate the existence of a factual issue that these proffered reaso ns 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)).
-10- The evidence Roxas submits to carry his burden falls far short of the mark. First, Roxas c laims that certain statistics illustrate that female Caucas ians in their "early forties or younger" are given preferentia l treat ment over other minority applicants. (Roxas Br. at 6.) However , Roxas goes no further with this contention, developing no argument an d citing no language from case law in support of this claim. Although w e have held that statistics can be useful in deter mining 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. Afte r carefu lly reviewing the record citations supplied by Roxas, we conclud e that his statistical evidence does not meet this standard.
Second, Roxas claims that the language he used in his 1991 sabb atical application was identical, or nearly identical, to that contained in his ap plication for sabbatical during the 1984-85 academic year, thereb y undermi ning the defendants' claim that his application was unfocused

. However, the defendan ts contend, and Roxas does not claim otherwise, that the circumstances at the College had changed markedly in 1991 from 1984; sp ecifically, the College was seeking accreditation of its four-yea r nursing program and pursuant thereto had begun placing an emphasis o n having nursing department faculty members obtainPh.D.s. Thus, the marked difference in circumstances between the two year s makes any discrepancy in the treatment of Roxas's second application unremarkable, and certainly no t evidence of discrimination.

### -11- 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 i n place provided that an applicant must "have worked for seven consecutive years prior to application" to be eligible fo r sabbatical leave. (J.A. at 338.) The personnel manual also indicated tha t "[a] sabbatical leave shall normally be for a te rm 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 s o incu rred be paid back at the rate of 20 percent per year for each yea r taught at the College after the leave. Sister Bodine characterize d Marheine' s proposal as "minimum money up front which will be paid bac k either in service or in money" and as an "unpaid leave of absence." ( Id. at 348 .) That the defendants overlooked the seven-year employmen t requirement in order to grant Marheine sabbatical leave readil y demonstrates, according to Roxas, the College's practice of specifically favori ng Caucasian females. However, as Roxas himself admits, thes e guidelines are simply that -- guidelines -- and Roxas offers no proof that they were ever deemedconclusively binding when the College considered an application for a sab batical. In fact, the record demonstrates that "the needs of the College" was the foremost concern when sabbatical application s
were considered. (J.A. at 338, 349.) Thus, given the needs of the College , which have been outlined in detail above, the Bo ard 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.
-12- nursing faculty with Ph.D.s, at minimum expense to the College. 4

Fin ally, Roxas claims certain statements allegedly made by Dea n Stibil i and the President, Sister Bodin, illustrate the College's bia s against him because o f his age and cultural heritage. The decisionmaking power regarding the sabbatical applications rested entirely with the Board , of which n either the President nor the Dean was a member. Roxas ha s offere d no evidence linking these alleged statements to his sabbatica l application or to the Board's decision to deny his application and thus, the purported statements are not evidence of pre text. See Hutson , 63 F.3d at 77 9 (holding that statements made by individuals who were not fina l decisi onmakers with respect to decision to terminate do not establis h pretext because no evidence of causal nexus). Neither has he shown that the Dean or the President made any misrepresentations concerning him to th e Board. Additionally, there is no evidence that the President or Dean of the College made any discriminatory comments abo ut Roxas to members of the Board in an effort to influence the Board concerning Roxas's qualification s for a sabbatical, or that the Board formed its judgment based on suc h statements. See Ryther v. KARE 11 , 84 F.3d 1074, 1085 (8th Cir. 1996).

Roxas t hus has failed to present any evidence which would create a gen uine issue of material fact that the College's proffered reasons fo r 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).
-13- a pretext for unlawful discrimination

. Accordingly, the district court's 5 grant of summary judgment to the defendants was proper. 6

IV.

For the r easons enumerated above, we affirm the judgment of th e district court.

A true copy.

Attest:

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

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