The Honorable H. Franklin Waters, United States District Judge for the Western 1

District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 97-2872

 

Monica Kindred, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Northome/Indus. School District *

No. 363, *

*

 Appellee. *

 

Submitted: March 11, 1998

 Filed: August 21, 1998

 

Before BEAM and HEANEY, Circuit Judges, and WATERS, District Judge. 1

 

HEANEY, Circuit Judge.

Monica Kindred appeals the magistrate judge’s grant of summary judgment in

favor of Northome/Indus. School District No. 363 (“the District”) on Kindred’s claim

that the District discriminated against her in violation of Title VII of the Civil Rights
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Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, by refusing to provide her

premium pay for driving a new bus route. We affirm.

I.

Kindred began working as a substitute bus driver for the District in 1978. The

District is geographically one of the largest school districts in Minnesota. It comprises

1,800 square miles, includes two schools that are eighty miles apart, and presently has

an enrollment of 400 students. On August 24, 1982, the District hired Kindred as a

full-time bus driver for the Northome School. Her first route was the “Gemell Route,”

which she drove for eight years. In 1989, the District assigned Kindred to the “Forest

Grove-Mizpah Route,” which she drove for three school years. 

In the spring of 1992, the District’s Superintendent of Schools, Ronald Schuster,

discussed plans to eliminate what was known as the “East Route” with the Minnesota

School Employees Association (“the Union”), the union with which the District had a

Collective Bargaining Agreement (“CBA”). At 180 miles per round trip, the East

Route was the longest route in the District. Due to its length, the East Route’s driver

received premium pay in addition to a regular monthly salary. All of the previous

drivers of the East Route had been male. 

Superintendent Schuster determined that the District would save $24,000 by

reconfiguring three other routes to include portions of the East Route. The

reconfiguration would reduce the total miles driven by approximately 10,000, would

eliminate the need for one bus and one driver, and the District could discontinue its

premium payment to the driver of the East Route. The District planned to reconfigure

the routes at the time that it knew the driver of the East Route, Lee Fraley, was

planning to retire, thereby permitting the District to change the routes without

terminating a bus driver.
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On April 15, 1992, the Union accepted the reconfiguration of the three routes and

the elimination of the East Route and premium pay for its driver, incorporating the

changes into their CBA effective at the beginning of the 1992-93 school term. On

August 12, 1992, the School Board approved the proposed route changes. 

On September 4, 1992, the District assigned Kindred to the “Wildwood-Mizpah

Route” for the 1992-93 school year. Kindred considered the route to be the East Route,

and in fact, the Wildwood-Mizpah Route contained portions of the former East Route.

When Kindred learned that she would not be receiving premium pay for driving the

Wildwood-Mizpah Route, she complained to Chris Schaefer, a union representative. 

At the December 9, 1992 School Board meeting, Schaefer spoke on Kindred’s behalf,

presenting her request that she receive additional pay for her new route. The School

Board tabled Kindred’s request in order to further investigate the matter. 

Superintendent Schuster conducted an investigation of Kindred’s route and

consulted Steven Goede, Kindred’s supervisor. Schuster determined that Kindred had

adequate time to complete her morning and evening routes within the two-hour time

limit specified by the CBA. On February 10, 1993, Schuster relayed this information

to the School Board and the Board subsequently denied Kindred’s request for premium

pay. 

At the same time that Kindred made her request, another female driver, Norma

Ulrich, also requested premium pay. After conducting a similar investigation of Ulrich’s

route, the District determined that Ulrich’s route exceeded the CBA’s time limit by

forty-five minutes. The School Board granted Ulrich premium pay for her route.

On March 19, 1993, Kindred filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”), alleging age and sex discrimination by the District
In contrast to Kindred’s contention, the District demonstrated that the

2

unappropriated portion of the transportation fund decreased from $113,808 in 1986-87

to $19,065 at the end of 1991-92.

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in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 and

Title VII. In her complaint, Kindred stated that the District assigned her a longer route

without additional pay and that she received no waiting time pay or activity trips.

Kindred alleged that Schuster discriminated against her because of her gender, verbally

harassed her, and threatened her with disciplinary action. Specifically, Kindred claimed

that she was being treated differently than younger, male bus drivers. 

After receiving notice of her right to sue from the EEOC on August 21, 1995,

Kindred filed a suit against the District on November 14, 1995 for age and sex

discrimination. In her deposition, Kindred claimed that Schuster had “glared” at her and

repeatedly called her into his office to reprimand her. Kindred also stated that Schuster

accompanied her on her route on several occasions, which she believed to be excessive.

Kindred alleged that on one such occasion, Schuster “called her names” when Kindred

could not provide information Schuster requested about another driver. Goede claimed

in his deposition that he overheard Schuster state that “women can’t handle taking care

of the kids on the bus.” 

In his deposition, Schuster claimed that he gave Kindred the Wildwood-Mizpah

Route because part of it ran adjacent to her previous route and she knew the Mizpah

area. Kindred claimed that another male driver was a better choice for the WildwoodMizpah Route. Citing several subsequent purchases the District made for the

transportation department, Kindred contested the School Board’s contention that

changing the routes was necessary as a cost saving. Kindred also asserted that the East 2

Route driven by Fraley was not 180 miles round trip, but in fact was 135 to 140 miles.

She claimed that the Wildwood-Mizpah Route was approximately 122 miles round trip.

Kindred reasoned that because her route was only 13 to 20 miles less than
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the original East Route, she should be entitled to premium pay. The District responded

that there were two routes longer than the Wildwood-Mizpah Route where the drivers

did not earn premium pay.

On June 2, 1997, the magistrate judge issued an order granting the District’s

motion for summary judgment on all of Kindred’s claims. Kindred appeals the

magistrate’s order only with respect to her claim of gender-based wage discrimination.

II.

We review the district court’s grant of summary judgment de novo, viewing the

facts in the light most favorable to Kindred. See Moore v. Payless Shoe Source, Inc.,

139 F.3d 1210, 1211 (8th Cir. 1998). Under Title VII, an employer may not

“discriminate against any individual with respect to [her] compensation, terms,

conditions, or privileges of employment, because of [her] . . . sex.” 42 U.S.C. § 2000e2(a). Where a plaintiff alleges that her employer provides “unequal pay for equal work

on the basis of sex, the standards are the same whether the plaintiff proceeds under Title

VII or the Equal Pay Act” of the Fair Labor Standards Act, 29 U.S.C. § 206(d). EEOC

v. Cherry-Burrell Corp., 35 F.3d 356, 360 (8th Cir. 1994) (citations omitted) (footnote

added). 

To present a prima facie case of discrimination under Title VII, Kindred must

demonstrate (a) that she is a member of a protected class, (2) that she is qualified to

receive the benefit in question, (3) that she was denied the benefit, and (4) that the

action occurred in circumstances that give rise to an inference of discrimination. See

Thomas v. Runyon, 72 F.3d 957, 959 (8th Cir. 1997) (citation omitted). To succeed on

a claim of unequal pay for equal work on the basis of sex, Kindred must prove that the

District “pays different wages to employees of opposite sexes for equal work on jobs

the performance of which requires equal skill, effort and responsibility, and which are

performed under similar working conditions.” EEOC v. Delight Wholesale Co.,
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973 F.2d 664, 669 (8th Cir. 1992) (citation and internal quotations omitted). Because

Kindred presents no direct evidence of discrimination under either Title VII or the Equal

Pay Act, we analyze her claim under the McDonnell Douglas burden-shifting

framework set forth by the Supreme Court. See Lang v. Star Herald, 107 F.3d 1308,

1311 (8th Cir. 1997) (citations omitted). 

We agree with the magistrate’s conclusion that the District did not discriminate

against Kindred by refusing to provide her with premium pay for driving the WildwoodMizpah Route. Kindred failed to present a prima facie case of discrimination because

the District’s refusal to provide her premium pay does not constitute an adverse

employment decision under Title VII. The East Route, for which the district provided

premium pay, substantially differed from the Wildwood-Mizpah Route. The East Route

comprised a round trip of between 140 and 180 miles versus the Wildwood-Mizpah

Route’s round trip of 122 miles. This distinction is sufficient to disqualify Kindred’s

new assignment from a comparison with the East Route, which by Kindred’s mileage

estimate is nearly fifteen percent longer, as “equal work on jobs the performance of

which requires equal skill, effort and responsibility, and which are performed under

similar working conditions.” Corning Glass Works v. Brennan, 417 U.S. 188, 195

(1974). 

Moreover, Kindred also failed to demonstrate that the District refused to provide

her with premium pay because of her gender. For example, Kindred has not

demonstrated that the District’s refusal to provide premium pay was outside the

provisions of the CBA. Even if Kindred showed that the District’s decision was

inconsistent with the CBA, she failed to provide any evidence that intentional

discrimination was the real motivating factor in the decision. See St. Mary’s Honor Ctr.

v. Hicks, 509 U.S. 502, 515 (1993). Viewing the facts in Kindred’s favor in this appeal,

we assume Schuster stated that, “women can’t handle taking care of the kids
"Remarks at work that are based on sex stereotypes do not inevitably prove that 3

gender played a part in a particular employment decision.” Price Waterhouse v.

Hopkins, 490 U.S. 228, 251 (1989). Kindred “must show that the employer actually

relied on her gender in making its decision.” Id. In essence, an employer’s comments

must constitute more than stray remarks for a Title VII plaintiff to show discrimination.

See id.

Likewise, Kindred’s assertion that a male driver was the more likely choice for 4

assignment to the Wildwood-Mizpah Route, without more, is merely speculative and

insufficient to give rise to an inference of discrimination. Kindred clearly disliked her

assignment to the Wildwood-Mizpah Route. However, Kindred does not meet the

threshold for showing an adverse employment action for the purpose of establishing a

prima facie case of gender discrimination where her claim “describes nothing more

disruptive than a mere inconvenience or an alteration of job responsibilities.” Harlston

v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). 

7

on the bus.” Even were Schuster’s stray comment an accurate description of his

3

beliefs, the District’s reassignment of Kindred to a route longer than her previous route

is at odds with a belief that women are unable to perform comparably to male bus

drivers. In addition, although Kindred alluded to Schuster glaring at her or calling her

names, she presented no evidence to suggest that such instances resulted from a genderbased animus. Any evidence showing a discriminatory intent by the District would

4

also be contradicted by the fact that following a similar investigation to the one

conducted on Kindred’s behalf, the District granted the only request for premium pay

to another female bus driver. 

III.

For the foregoing reasons, we affirm the magistrate’s grant of summary judgment

in favor of the District.
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A true copy.

Attest.

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