Th e Honorable Ortrie D. Smith, United States District Judge for the Western 1 District of Missouri, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 96-1951

Theresa M. Hanenburg, * * Appellant, * * Appeal from the Unite d States v. * District Court for the * District of Minnesota Principal Mutual Life Insurance * Company, * * Appellee. *

Submitted: December 11, 1996 Filed: May 20, 1997

Befor e BOWMAN and HEANEY, Circuit Judges, and SMITH, 1 District Judge.

HEANEY, Circuit Judge.

The resa Hanenburg appeals from the district court' s grant of summary judgment to her former employer , Principal Mutua l Life Insurance Company ("Principal"), in this case broug ht under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2

2000e- 17 (1994), and the Minnesota Human Rights Ac t ("MHRA"), Minn. Stat. §§ 363.01-363.15 (1991), allegin g unlawful, gender-based employment discrimination, an d under the Family and Medical Leave Act ("FMLA"), 2 9 U.S.C. §§ 2601-2654 (1994). We affirm.

I.
Viewed in a light most favorable to Hanenburg, th e record reveals the following facts. Hanenburg bega n working for Pri ncipal as a salaried, claim data processor in August 1988. She was promoted to senior computer data proces sor in 1990. Hanenburg ultimately resigned o n January 22, 1995.
Principal's employee-benefits policy explicitly treat s illn esses during pregnancy or childbirth the same as an y other illness. Hanenburg was pregnant three times during her em ployment with Principal. Due to complications , Hanenburg took an extended leave with each pregnan cy. She took twelve-week disability leaves with the births of each of her first tw o children in August 1989 and August 1992. During all but four of those twenty-four weeks, Hanenburg
was pa id two-thirds salary. From 1989 until 1993 , Hanenburg received good performance reviews and above

average raises.
Hanenburg's third pr egnancy coincided with increased stress at work. Her supervisor, in an effort to increase the local office's service and production ran kings within the company, was enforcing an attendance policy tha t permitted fewer absences than were allowed unde r Principal's company-wide policy. Hanenburg’s supervisors3

went to gr eat lengths to achieve the office’s attendance goals. Although employees were not directly punished for taking time off that was permissible under the company

wide policy but exceeded the office goals, significan t abs ences negatively impacted employee performanc e eva luations which, in turn, impacted the employees ’ annu al raises. Hanenburg's supervisors informed her o n more than one occasion that her continued absences, du e to he r maternity leaves and time she took off from wor k to4

attend to her sick children, were a problem. In he r annu al performance evaluation for 1993, for example , Hanenbu rg was ranked in the top fifteen percent for he r wo rk quality and productivity, but was ranked in th e bot tomten percent overall due in large part to he r attendance record. As a result of that poor evaluation, Hanen burg received a below-average salary increase i n 19 94. At a March 1994 meeting in which managemen t informed H anenburg about her raise, she announced to her supervisors that she was again pregnant. Han enburg asked whethe r her next year's raise would be affected by he r pregnancy, and her supervisor answered that any extended disabilityabsences would negatively impact futur e raises.

Durin g this same period, and particularly afte r Ha nenburg informed her supervisors about her thir d pregnancy, Hanenburg's workplace behavior was closel y monitored. To a greater extent than other simila r workers, she was scrutinized and reprimanded fo r excessive talking and personal telephone use. In Apri l 1994 , one of Hanenburg's supervisors prepared a writte n warning cr iticizing her for too much personal use of the tele phone, excessive talking in the workplace, and he r gener al negative attitude. When Hanenburg complaine d that she was being unfairly singled out for criticism , her supervisor retracted the warning until she coul d explore the validity of Hanenburg's claim. Imm ediatelyafter that meeting in April 1994 , howe ver, Hanenburg began a disability leave due t o comp lications with her pregnancy. Among other things , Hanenburg's doctor determined that her work environmen t was stress ful and that it endangered her pregnancy. The5

disability

absence continued for more than eight months, durin g which time Hanenburg again received two-third s salary. On December 2, 1994, at the expiration of he r disab ilityleave, Hanenburg switched her leave statu s from paid-disability to an unpaid-parenting leave an d commenced an action under the MHRA. Hanenbur g ultimately resigned on January 22, 1995. Principal held Hanenburg's position open during each of her maternity le aves, and it is undispu ted that the company would have reinstated her had Hanenburg elected to return to work.Hanenb urg also brought a claim of intentional infliction of emotional distres s 2 againstPrincipal, which the district court dismissed for lack of evidence. Becaus e Hanenburg does not challenge that aspect of the district court's decision, we need not address it.
6 Han enburg brought an action claiming that Principa l unla wfullydiscriminated against her in violation o f state a nd federal law and that Principal violated th e FML A. The district court granted summary judgment t o

2 Prin cipal on each of Hannenburg's claims. Hannenbur g appeals and we affirm.

II.

"We review the district court's grant of summar y judgm ent de novo, applying the same standard as th e district c ourt did and examining the record in the light
mos t favorable to the nonmoving party." Barge v
. Anheuser-Busch, Inc. , 87 F.3d 256, 258 (8th Cir. 1996)

. Summ aryjudgment is appropriate when the evidence show s "that there is no genuine issue as to any material fac t and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

A. Title VII Claim

We turn first to the court's determination tha t Hannenburg's Ti tle VII claim is barred because she failed to fil e a charge with the EEOC. A plaintiff may no t asser t a claim under Title VII unless she has filed a timelycharge with the EEOC and, in most cases, the EEO C issues a notice, commonly called a right-to-sue letter

.7

Se e 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1); Alexande r v. Gardner-Denv er Co. , 415 U.S. 36, 47 (1974); Chaffin v. Rheem M fg. Co. , 904 F.2d 1269, 1271 (8th Cir. 1990)

. Hannenburg acknowledges that she neither filed a discrimination charge with the EEOC nor received a rightto-sue letter. She claims, however, that she satisfie d the requirementsThe r ecord indicates that Hannenberg contacted the MDHR by telephon e 3 sometimein the Fall of 1994. The agency sent her a letter dated October 17, 199 4 confirming the substance of the conversation in which Hannenberg was advise d that she had not provided the agency with information that would support the filing of a claim at that time and suggested that Hannenberg contact the age ncy again if she experienced problems in the future. (Appellant's App. at 107.) The state agency took no furthe r action and the record does not indicate that Hannenberg ever filed a formal claim. Hannenberg's failure to file a claim with the MDHR did not cause her to forfeit her dis crimination claim under the MHRA, however. The state statute permits her to assert her claim by filing either a formal charge with the MDHR or in a civil suit within one year of the alleged discriminaotry incide nts. Minn. Stat. § 363.06, subd. 3 (1991). Hannenberg commenced this action on December 2, 1994.
8 by con tacting the Minnesota Department of Human Right s ("MDHR"). Because Minnesota law prohibits the unlawfu l

3 emp loyment practices alleged by Hannenburg, she wa s obliged to first pursue relief with the MDHR befor e filing
a charge with t he EEOC. See 42 U.S.C. § 2000e-5(c). This notificati on, however, did not waive the EEOC filing requirement or preserve her right to assert a Title VI I clai mabsent the requisite EEOC notification. 42 U.S.C

. § 2000e-5(e) (merely extending time in which to file a charge with the EEOC when complainant initially pursue s relie f from alleged unlawful employment practice wit h state agency). Thus, we agree with the district cour t that Hannenburg's Title VII claim is barred.

B. MHRA Claim
Under the MHRA, Hannenburg is entitled to relief i f sh e demonstrates that her employer discriminated agains t her be cause of pregnancy or disabilities related t oAlth oughthe time bar against Hannenberg's Title VII claim might caution u s 4 against the exercise of pendant jurisdiction over her state law claim, the parties have complete diversity of citizenship and thus we have jurisdiciton under 28 U.S.C. § 1332.
9 pregnancy. The Act specifically deems it an unfair labor 4 practice,10

[f]or an employer, . . . with respect to al l employment related purposes, includ ing receipt of benefits under fringe benefit programs, not t o treat women affected by pregnancy, childbirth, or disabilities related to pregnancy or childbirth, the same as other persons not so af fected but who are similar in their ability to work . . . . . Minn. Stat. § 363.03, subd. 1(5) (1991). In analyzin g case s under the MHRA, the state courts apply th e princi ples developed in the adjudication of claims unde r Title VII becau se of the substantial similarities between the two statute s. Sigurdson v. Isanti County , 386 N.W.2d 715, 719 (Minn. 1986); see 42 U.S.C. § 2000e-(k). I n short, Title VII requires employers to treat emplo yees who
are me mbers of protected classes the same as othe r similarly-situated employees. Lang v. Star Herald , 10 7 F.3d 1308, 1312 (8th Cir. 1997).

Han nenburg has not clearly set out the particula r discrimination theory under which she is proceeding. The facts seem best suited to analysis under a disparate

treatment theory of constructive discharge, insofar a s Hannenb urg claims that, as a result of her pregnancies , Princ ipal subjected her to criticism, discipline, an d general harassment in the workplace to the extent that the job-induced str ess became too much for her to endure. We agree with the district court that Hannenburg canno t establish Principal's discriminatory intent by direc t evidence. Thus , we analyze her claim under the familiar, burden-shifting test set out in the McDonnell Doug las line of cases. See St. Mary's Honor Ctr. v. Hicks , 509 U.S

. 502, 5 06-08 (1993); United States Postal Serv. Bd.o f Governo rs v. Aikens , 460 U.S. 711, 713-15 (1983); Texa s Dep't of Commun ity Affairs v. Burdine , 450 U.S. 248, 252-11

56 (1981); McDonnell Douglas Corp. v. Green , 411 U .S. 792, 80 2 (1973). To establish a prima facie case, Hannenbur g must p resent evidence demonstrating the following: (1 ) she was a member of a protected group; (2) she wa s qu alified for her position; and (3) she was discharge d under circumstances giving rise to an inference o f discrimination. See Tidwell v. Meyer's Bakeries, Inc. , 93 F.3d 490, 494 (8th Cir. 1996) (citing Johnson v. Bunn y Bread Co. , 646 F.2d 1250, 1253 (8th Cir. 1981)). I f Hannenburg successfully creates12

a prima facie case, the burden of production shifts t o Princi pal to offer a nondiscriminatory reason for it s action. Lang , 107 F.3d at 1311 (citing Stevens v. St
. Louis Univ. Medical Ctr. , 97 F.3d 268, 270-71 (8th Cir

. 1996 )). Once Principal advances a nondiscriminator y reason , Hannenburg can survive summary judgment if sh e prod uces sufficient admissible evidence from which a rational factfinder could disbelieve Principal's p roffered reason and find that the company's true motivation for its conduct was intentional discrimination. Lang , 107 F.3d at 1311, citing , Hicks , 509 U.S. at 515 and Ryther v. KAR E 11 , 1997 WL 94025 at *4 (8th Cir. Mar. 6, 1997) (e n banc), petition for ce rt. filed , 65 U.S.L.W. 3694 (U.S. April 4, 1997) (No. 96-1571).
Hannenburg has clearly established the first tw o elements of her prima facie case: She was a membe r of the protected class as a pregnant woman and she was qualified for her position. For the third element, becaus e Pr incipal never actually terminated her, Hannenberg mus t offer evidence sufficient to establish that she wa s co nstructivelydischarged--that is, that Principa l deliberatelycreated intolerable working conditions wit h the intention of forcing her to quit. See Bunny Brea d Co. , 6 46 F.2d at 1256 (standard for constructiv e discha rge). Hannenburg need not prove that Principa l
con sciouslysought her resignation; rather, she ca n satisf ythe intent requirement with proof that he r resignation was a reasonably foreseeable consequence o f her em ployer's discriminatory actions. See Hukkanen v

. Intern ational Union of Operating Eng'rs & Portable Loca l No. 101 , 3 F.3d 281, 285 (8th Cir. 1993). Nonetheless, a
cons tructive discharge arises only when a reasonabl e13

pers on would find the conditions of employmen t intolerable, id

. , and the employee must give her employer a reasonable opportunity to work out the problems prior to resigning. West v. Marion Merrell Dow, Inc. , 54 F .3d 493, 498 (8th Cir. 1995).
Hannenburg simply has not produced evidence from whic h
a reas onable factfinder could find that she wa s constructivelydischarged. The evidence neithe r estab lishes that a reasonable person would fin d Hannenburg's working conditions intolerable nor tha t Princi pal acted with the intention of forcing Hannenbur g to quit or14

that Hannenburg's resignation was a reasonably for eseeable conseq uence of Principal's actions. Her supervisors n o doubt held Hann enburg to high attendance standards, which
exce eded those set out in the company's employee manual

. These standards, however, were not objectivel y unre asonable and were applied evenly to all employees i n the office. If believed, Hannenburg's evidence al so shows that h er supervisors scrutinized her behavior in th e wo rkplace more closely than it did other employees. Fo r a time, her supervisors also specially monitore d Hannenburg's pe rsonal phone use. While all this no doubt
ma de work less enjoyable for Hannenburg and might hav e induce d stress for her, there is simply not enoug h eviden ce to support a finding that her supervisors ' cond uct created the compulsion to quit that is necessar y for a constructive discharge.

Moreover, Hannenburg never gave Principal a reasonabl e opportu nityto improve her working conditions. The on e time she formally complained about her treatment, at th e April 1994 meeting in which she was to be issued a written warning, Princi pal responded by withdrawing the reprimand unt il it could ensure that Hannenburg was not bein g unfair lysingled out for harsher treatment. Almos t immediately aft er that incident, Hannenburg began a paid, pr egnancy-related disability leave that lasted more tha n eight months and she never returned to regular wor k again. Thus, Principal never had a meaningful opportunity t o consid er and address Hannenburg's claim that she wa s treated unfairly by the company. Because she canno t demonstrate that she was constructively discharged , Ha nnenburg has failed to establish a prima facie case o f15

discrimination based on pregnancy. Thus, summary judgment was appropriate.

C. FMLA Claim

The district court granted summary judgment t o Principal on Hannenburg's claim under the FML A, 29 U.S.C. §§ 2 601-2654. Briefly, the FMLA requires large r empl oyers to give qualified employees at least twelv e weeks o f unpaid leave per twelve-month period for th e birth of a child or if an employee's immediate family16

memb er has a serious medical condition. 29 U.S.C. § 2612 (a)(1). We agree with the district court' s conclusion that nothing in the record suggests Principal denied Hannenburg leave in violation of the FMLA or i n any way interfered with her rights under the statute.

III.

For the reasons stated, we affirm the distric t court's grant of summary judgment.
A true copy.

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