The 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 United

States

v. * District Court for the

* District of Minnesota

Principal Mutual Life Insurance *

Company, *

*

 Appellee. *

 

Submitted: December 11, 1996

 Filed: May 20, 1997

 

Before BOWMAN and HEANEY, Circuit Judges, and SMITH,1

District Judge.

 

HEANEY, Circuit Judge.

Theresa Hanenburg appeals from the district court's

grant of summary judgment to her former employer,

Principal Mutual Life Insurance Company ("Principal"), in

this case brought under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e-
2

2000e-17 (1994), and the Minnesota Human Rights Act

("MHRA"), Minn. Stat. §§ 363.01-363.15 (1991), alleging

unlawful, gender-based employment discrimination, and

under the Family and Medical Leave Act ("FMLA"), 29 U.S.C.

§§ 2601-2654 (1994). We affirm. 

I.

Viewed in a light most favorable to Hanenburg, the

record reveals the following facts. Hanenburg began

working for Principal as a salaried, claim data processor

in August 1988. She was promoted to senior computer data

processor in 1990. Hanenburg ultimately resigned on

January 22, 1995. 

Principal's employee-benefits policy explicitly treats

illnesses during pregnancy or childbirth the same as any

other illness. Hanenburg was pregnant three times during

her employment with Principal. Due to complications,

Hanenburg took an extended leave with each pregnancy. She

took twelve-week disability leaves with the births of each

of her first two children in August 1989 and August 1992.

During all but four of those twenty-four weeks, Hanenburg

was paid two-thirds salary. From 1989 until 1993,

Hanenburg received good performance reviews and aboveaverage raises.

Hanenburg's third pregnancy coincided with increased

stress at work. Her supervisor, in an effort to increase

the local office's service and production rankings within

the company, was enforcing an attendance policy that

permitted fewer absences than were allowed under

Principal's company-wide policy. Hanenburg’s supervisors
3

went to great lengths to achieve the office’s attendance

goals. Although employees were not directly punished for

taking time off that was permissible under the companywide policy but exceeded the office goals, significant

absences negatively impacted employee performance

evaluations which, in turn, impacted the employees’

annual raises. Hanenburg's supervisors informed her on

more than one occasion that her continued absences, due

to her maternity leaves and time she took off from work

to 
4

attend to her sick children, were a problem. In her

annual performance evaluation for 1993, for example,

Hanenburg was ranked in the top fifteen percent for her

work quality and productivity, but was ranked in the

bottom ten percent overall due in large part to her

attendance record. As a result of that poor evaluation,

Hanenburg received a below-average salary increase in

1994. At a March 1994 meeting in which management

informed Hanenburg about her raise, she announced to her

supervisors that she was again pregnant. Hanenburg asked

whether her next year's raise would be affected by her

pregnancy, and her supervisor answered that any extended

disability absences would negatively impact future

raises.

During this same period, and particularly after

Hanenburg informed her supervisors about her third

pregnancy, Hanenburg's workplace behavior was closely

monitored. To a greater extent than other similar

workers, she was scrutinized and reprimanded for

excessive talking and personal telephone use. In April

1994, one of Hanenburg's supervisors prepared a written

warning criticizing her for too much personal use of the

telephone, excessive talking in the workplace, and her

general negative attitude. When Hanenburg complained

that she was being unfairly singled out for criticism,

her supervisor retracted the warning until she could

explore the validity of Hanenburg's claim.

Immediately after that meeting in April 1994,

however, Hanenburg began a disability leave due to

complications with her pregnancy. Among other things,

Hanenburg's doctor determined that her work environment

was stressful and that it endangered her pregnancy. The
5

disability absence continued for more than eight months,

during which time Hanenburg again received two-thirds

salary. On December 2, 1994, at the expiration of her

disability leave, Hanenburg switched her leave status

from paid-disability to an unpaid-parenting leave and

commenced an action under the MHRA. Hanenburg ultimately

resigned on January 22, 1995. Principal held Hanenburg's

position open during each of her maternity leaves, and it

is undisputed that the company would have reinstated her

had Hanenburg elected to return to work.
Hanenburg also brought a claim of intentional infliction of emotional distress

2

against Principal, which the district court dismissed for lack of evidence. Because

Hanenburg does not challenge that aspect of the district court's decision, we need not

address it.

6

Hanenburg brought an action claiming that Principal

unlawfully discriminated against her in violation of

state and federal law and that Principal violated the

FMLA. The district court granted summary judgment to

2

Principal on each of Hannenburg's claims. Hannenburg

appeals and we affirm. 

II.

"We review the district court's grant of summary

judgment de novo, applying the same standard as the

district court did and examining the record in the light

most favorable to the nonmoving party." Barge v.

Anheuser-Busch, Inc., 87 F.3d 256, 258 (8th Cir. 1996).

Summary judgment is appropriate when the evidence shows

"that there is no genuine issue as to any material fact

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 that

Hannenburg's Title VII claim is barred because she failed

to file a charge with the EEOC. A plaintiff may not

assert a claim under Title VII unless she has filed a

timely charge with the EEOC and, in most cases, the EEOC

issues a notice, commonly called a right-to-sue letter.
7

See 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1); Alexander

v. Gardner-Denver Co., 415 U.S. 36, 47 (1974); Chaffin v.

Rheem Mfg. 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 satisfied

the requirements
The record indicates that Hannenberg contacted the MDHR by telephone

3

sometime in the Fall of 1994. The agency sent her a letter dated October 17, 1994

confirming the substance of the conversation in which Hannenberg was advised 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 agency again if she experienced

problems in the future. (Appellant's App. at 107.) The state agency took no further

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 discrimination 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 incidents. Minn. Stat. § 363.06, subd. 3 (1991).

Hannenberg commenced this action on December 2, 1994.

8

by contacting the Minnesota Department of Human Rights

("MDHR"). Because Minnesota law prohibits the unlawful

3

employment practices alleged by Hannenburg, she was

obliged to first pursue relief with the MDHR before filing

a charge with the EEOC. See 42 U.S.C. § 2000e-5(c).

This notification, however, did not waive the EEOC filing

requirement or preserve her right to assert a Title VII

claim absent 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 pursues

relief from alleged unlawful employment practice with

state agency). Thus, we agree with the district court

that Hannenburg's Title VII claim is barred.

B. MHRA Claim

 Under the MHRA, Hannenburg is entitled to relief if

she demonstrates that her employer discriminated against

her because of pregnancy or disabilities related to
Although the time bar against Hannenberg's Title VII claim might caution us

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 all

employment related purposes, including receipt of

benefits under fringe benefit programs, not to

treat women affected by pregnancy, childbirth, or

disabilities related to pregnancy or childbirth,

the same as other persons not so affected but who

are similar in their ability to work . . . . .

Minn. Stat. § 363.03, subd. 1(5) (1991). In analyzing

cases under the MHRA, the state courts apply the

principles developed in the adjudication of claims under

Title VII because of the substantial similarities between

the two statutes. Sigurdson v. Isanti County, 386 N.W.2d

715, 719 (Minn. 1986); see 42 U.S.C. § 2000e-(k). In

short, Title VII requires employers to treat employees who

are members of protected classes the same as other

similarly-situated employees. Lang v. Star Herald, 107

F.3d 1308, 1312 (8th Cir. 1997).

Hannenburg has not clearly set out the particular

discrimination theory under which she is proceeding. The

facts seem best suited to analysis under a disparatetreatment theory of constructive discharge, insofar as

Hannenburg claims that, as a result of her pregnancies,

Principal subjected her to criticism, discipline, and

general harassment in the workplace to the extent that the

job-induced stress became too much for her to endure. We

agree with the district court that Hannenburg cannot

establish Principal's discriminatory intent by direct

evidence. Thus, we analyze her claim under the familiar,

burden-shifting test set out in the McDonnell Douglas line

of cases. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.

502, 506-08 (1993); United States Postal Serv. Bd.of

Governors v. Aikens, 460 U.S. 711, 713-15 (1983); Texas

Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-
11

56 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). To establish a prima facie case, Hannenburg

must present evidence demonstrating the following: (1)

she was a member of a protected group; (2) she was

qualified for her position; and (3) she was discharged

under circumstances giving rise to an inference of

discrimination. See Tidwell v. Meyer's Bakeries, Inc., 93

F.3d 490, 494 (8th Cir. 1996) (citing Johnson v. Bunny

Bread Co., 646 F.2d 1250, 1253 (8th Cir. 1981)). If

Hannenburg successfully creates 
12

a prima facie case, the burden of production shifts to

Principal to offer a nondiscriminatory reason for its

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 nondiscriminatory

reason, Hannenburg can survive summary judgment if she

produces sufficient admissible evidence from which a

rational factfinder could disbelieve Principal's proffered

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. KARE

11, 1997 WL 94025 at *4 (8th Cir. Mar. 6, 1997) (en banc),

petition for cert. filed, 65 U.S.L.W. 3694 (U.S. April 4,

1997) (No. 96-1571).

Hannenburg has clearly established the first two

elements of her prima facie case: She was a member of the

protected class as a pregnant woman and she was qualified

for her position. For the third element, because

Principal never actually terminated her, Hannenberg must

offer evidence sufficient to establish that she was

constructively discharged--that is, that Principal

deliberately created intolerable working conditions with

the intention of forcing her to quit. See Bunny Bread

Co., 646 F.2d at 1256 (standard for constructive

discharge). Hannenburg need not prove that Principal

consciously sought her resignation; rather, she can

satisfy the intent requirement with proof that her

resignation was a reasonably foreseeable consequence of

her employer's discriminatory actions. See Hukkanen v.

International Union of Operating Eng'rs & Portable Local

No. 101, 3 F.3d 281, 285 (8th Cir. 1993). Nonetheless, a

constructive discharge arises only when a reasonable
13

person would find the conditions of employment

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 which

a reasonable factfinder could find that she was

constructively discharged. The evidence neither

establishes that a reasonable person would find

Hannenburg's working conditions intolerable nor that

Principal acted with the intention of forcing Hannenburg

to quit or
14

that Hannenburg's resignation was a reasonably foreseeable

consequence of Principal's actions. Her supervisors no

doubt held Hannenburg to high attendance standards, which

exceeded those set out in the company's employee manual.

These standards, however, were not objectively

unreasonable and were applied evenly to all employees in

the office. If believed, Hannenburg's evidence also shows

that her supervisors scrutinized her behavior in the

workplace more closely than it did other employees. For

a time, her supervisors also specially monitored

Hannenburg's personal phone use. While all this no doubt

made work less enjoyable for Hannenburg and might have

induced stress for her, there is simply not enough

evidence to support a finding that her supervisors'

conduct created the compulsion to quit that is necessary

for a constructive discharge. 

Moreover, Hannenburg never gave Principal a reasonable

opportunity to improve her working conditions. The one

time she formally complained about her treatment, at the

April 1994 meeting in which she was to be issued a written

warning, Principal responded by withdrawing the reprimand

until it could ensure that Hannenburg was not being

unfairly singled out for harsher treatment. Almost

immediately after that incident, Hannenburg began a paid,

pregnancy-related disability leave that lasted more than

eight months and she never returned to regular work again.

Thus, Principal never had a meaningful opportunity to

consider and address Hannenburg's claim that she was

treated unfairly by the company. Because she cannot

demonstrate that she was constructively discharged,

Hannenburg has failed to establish a prima facie case of
15

discrimination based on pregnancy. Thus, summary judgment

was appropriate.

C. FMLA Claim

The district court granted summary judgment to

Principal on Hannenburg's claim under the FMLA, 29 U.S.C.

§§ 2601-2654. Briefly, the FMLA requires larger

employers to give qualified employees at least twelve

weeks of unpaid leave per twelve-month period for the

birth of a child or if an employee's immediate family
16

member 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 in

any way interfered with her rights under the statute.

III.

For the reasons stated, we affirm the district

court's grant of summary judgment.

A true copy.

Attest.

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