1

The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 04-3637

 

Patricia Grabovac, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Allstate Insurance Company, *

*

Appellee. *

 

Submitted: June 24, 2005

 Filed: October 14, 2005 

 _____________ 

Before ARNOLD, McMILLIAN, and COLLOTON, Circuit Judges.

 

McMILLIAN, Circuit Judge.

Patricia Grabovac appeals from a final judgment entered in the District Court1

for the Eastern District of Missouri granting summary judgment in favor of her former

employer, Allstate Insurance Company (Allstate), on her claims of sex discrimination
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and retaliation in violation of Title VII, 42 U.S.C. §§ 2000(e)-2, 2000e-3, and the

Equal Pay Act (EPA), 29 U.S.C. §§ 206(d)(1), 215(a)(3). We affirm. 

BACKGROUND

Grabovac worked for Allstate in its west central region from 1997 until she

was terminated in November 2001. At the time of her termination, Grabovac was a

marketing business consultant (MBC). In 1999, Allstate had developed Allstate

Financial Services (AFS), which allowed Allstate agents to sell variable life and

annuity products. AFS is a registered broker-dealer and member of the National

Association of Securities Dealers (NASD). Pursuant to NASD rules, an individual

who sells variable products and any individual who manages or supervisors a person

selling such products has to be registered with NASD. See NASD Manual, Rule

1031, 1032(b). Before an individual can be registered, he or she has to pass certain

NASD-required examinations. As an MBC, Grabovac managed sales representatives

who sold registered securities, and thus, as relevant here, had to pass NASD Series

6 and Series 63 examinations. 

Allstate set a deadline of October 31, 2001, for MBCs to pass the required

NASD examinations. As of January 2001, 22 MBCs in the west central region had

passed the required examinations. Nine MBCs, including Grabovac, had not passed

the examinations. By letter dated January 30, 2001, Bruce Williams, regional human

resources manager, informed Grabovac: "Please be advised that you must secure

[Series 6 and 63 licenses] . . . no later than October 31, 2001. [MBCs] who have not

met these requirements by October 31, 2001, may be offered another position for

which they are qualified, if available. Otherwise, their employment will be

terminated." At some point, Grabovac had complained to Williams that she felt she

was being discriminated against because she had to take the examinations and also

had complained that her manager was threatening to fire her if she did not meet her

“Life Plan,” one of her production goals. 
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On April 13, 2001, Stacey Roskens, a human resources manager at Allstate's

home office in Northbrook, Illinois, e-mailed Grabovac, warning Grabovac that she

had to "secure [the Series 6 and 63 licenses] by October 31, 2001." In the e-mail,

Roskens noted that Grabovac had failed the Series 6 examination twice and if she retook the examination "after April [2001] and failed for a third time, [she] would not

be allowed by NASD to [take] the exam until after the October 31, 2001, deadline for

sales management to have secured the 6 & 63 licenses . . . [and] would not meet the

minimum qualifications for continued employment as a Market Business Consultant."

On September 27 and October 1, 2001, Williams again wrote to Grabovac,

reminding her that she had to secure her Series 6 and 63 licenses by October 1, 2001,

and that failure to do so would result in termination of employment as an MBC.

Grabovac passed the Series 63 examination before the October 31 deadline, but took

the Series 6 examination on October 30, 2001, and failed. Of the 31 MBCs in the

west central region, Grabovac was the only MBC who failed to obtain her Series 6

license by the October 31, 2001, deadline. In November 2001, Roskens and Dale

Schueller, Grabovac's supervisor, met with Grabovac and informed her that she was

terminated because she had not passed her Series 6 examination before the October

31, 2001, deadline. Grabovac did not inquire about alternative employment with

Allstate. Leonard Fagan, a male who had been with Allstate since 1986, replaced

Grabovac as an MBC. 

In June 2003, Grabovac filed a complaint in federal court, alleging sex

discrimination and retaliation under Title VII and the EPA. Allstate filed a motion

for summary judgment. As to the Title VII discrimination claim, Allstate argued that

Grabovac could not establish a prima facie case because she was not qualified to be

an MBC due to her failure to pass the Series 6 examination by the October 31, 2001,

deadline, and in any event, as to the discrimination and retaliation claims, Grabovac

could not prove that the reason for her discharge–failure to pass the Series 6

examination by the deadline–was a pretext for discrimination or retaliation. As to the
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EPA claims, Allstate argued that a review of the 2001 monthly salary and year-end

bonuses for MBCs in the west central region showed that Grabovac had been paid

comparably with male employees, and that there was no evidence that she had ever

complained about unequal pay. Allstate filed numerous documents in support of its

motion. 

Grabovac opposed the motion, asserting that she had been given various

deadlines for passing the Series 6 examination, that she was Allstate's "number one"

producer, and that Fagan, who had replaced her as an MBC, had had "sex with [her]

in 2000 and did not ask permission first." She also claimed that two males, Robert

Vance and Timothy Waltrip, had different deadlines for passing the Series 6 and 63

examinations. Grabovac also submitted the affidavit and report of "expert witness"

Howard Danzig, her then-employer who was a NASD licensed stockbroker with 14

years experience in the insurance business. Among other things in his report, Danzig

stated that it was unusual for a company to discharge a "# 1 producer" and that

Allstate had not given Grabovac a reasonable opportunity to retake the Series 6

examination. In his affidavit, Danzig opined that by discharging Grabovac and

replacing her with Fagan, Allstate had violated a NASD regulation that required a

registered company to "observe high standards of commercial honor and just and

equitable principles and trade." Allstate moved to strike Grabovac's designation of

Danzig as an expert witness and exclude his report and affidavit under Fed. R. Evid.

702. 

The district court granted Allstate's motion for summary judgment and motion

to strike the designation of Danzig as an expert witness and exclude his affidavit and

report. As to the Title VII claims, the district court held that Grabovac could not

establish a prima facie case of sex discrimination because she was not qualified to be

an MBC, and that in any event, had not proved that Allstate's reason for her

discharge–failure to pass the Series 6 examination by the October 31, 2001

deadline–was a pretext for discrimination or retaliation. As to the EPA claims, the
2

As Allstate notes, Grabovac offers no facts in support of her assertion that

she was the "number one producer." 

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district court held that the unrebutted salary data provided by Allstate showed that of

the five MBCs in the region, four of whom were male, Grabovac had the second

highest salary and bonus. 

DISCUSSION

We review the district court’s grant of summary judgment de novo and "affirm

if, viewing the record in the light most favorable to [the non-moving party], there are

no genuine issues of material fact and [the moving party] is entitled to judgment as

a matter of law." Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002).

"In order to establish a genuine issue of material fact, [Grabovac], as the non-moving

party, could not simply rest upon the pleadings." Jeseritz v. Potter, 282 F.3d 542, 545

(8th Cir. 2002) (internal quotation omitted). "Nor could [s]he rely on conclusory

statements in [her] affidavit." Id. "Rather, [s]he had to ''point to evidence in the

record to raise a genuine issue for trial.'' Id. (internal quotation omitted). 

The district court did not err in granting Allstate summary judgment as to

Grabovac's Title VII discharge claim. It is undisputed that Grabovac did not pass the

Series 6 examination by the October 31, 2001, deadline. Thus, as the district court

held, she could not establish a prima facie case, because she was not "qualified for the

[MBC] position." Rodgers v. U.S. Bank, 417 F.3d 845, 850 (8th Cir. 2005) (Rodgers).

Although Grabovac argues that she was qualified because she was the "number one

producer," even if true, it is irrelevant.2

 Grabovac was discharged because she did not

pass the Series 6 examination by the deadline, not because of her sales performance.

Also irrelevant is her belief that the October 31 deadline was subject to change, that

the deadline was arbitrary, and that Allstate should have extended the deadline

because of personal problems. Allstate was entitled to chose the deadline and enforce
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it. It is well-established "that the employment- discrimination laws have not vested

in the federal courts the authority to sit as super-personnel departments reviewing the

wisdom or fairness of the business judgments made by employers, except to the

extent those judgments involve intentional discrimination." Hutson v. McDonnell

Douglas Corp., 63 F.3d 771, 781 (8th Cir.1995). 

Even if Grabovac could establish a prima facie case of discrimination, she

failed to offer evidence that Allstate's reason for her discharge–failure to pass the

Series 6 examination by the October 31 deadline–was a pretext for sex discrimination.

Although Grabovac argues that two males, Robert Vance and Timothy Waltrip, did

not meet the October 31 deadline and were not terminated, the two males were not

"similarly situated in all relevant respects." Rodgers, 417 F.3d at 853. Vance was an

agency consultant manager (ACM), not an MBC, and the fact Allstate had a different

deadline for ACMs to pass the Series 6 examination does not suggest that Allstate

discriminated on the basis of sex in imposing the October 31 deadline for MBCs.

Waltrip was an MBC, but passed his Series 6 and 63 examinations by the October 31

deadline before he voluntarily left his position as an MBC. When Waltrip returned

to Allstate, he passed additional NASD examinations by Allstate-mandated deadlines.

Nor, as Grabovac argues, does the fact that Fagan, with whom she had had a sexual

relationship in 2000, replaced her as an MBC raise an inference that Allstate's stated

reason for her discharge was a pretext for sex discrimination. 

The district court also did not err in granting summary judgment on Grabovac's

Title VII retaliation claim. Although we doubt that Grabovac could establish a prima

facie retaliation case, see Wallace v. Sparks Health Sys., 415 F.3d 853, 858 (8th Cir,

2005) (elements of prima facie Title VII retaliation case), even if she could, she

offered no evidence to show that Allstate's proffered reason for her discharge was a

pretext for retaliation. 
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Nor did the district court err in granting Allstate's motion summary judgment

as to Grabovac's EPA claims. "To establish a prima facie case under the [EPA],

[Grabovac had] to show that [Allstate] discriminated on the basis of sex by paying

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.'" Horn v. University of Minnesota, 362 F.3d 1042, 1045

(8th Cir. 2004) (quoting 29 U.S.C. 206(d)(1)). The evidence of record was provided

by Allstate and it shows that out of the five MBCs in the west central region, four of

whom were male, Grabovac had the second highest salary and bonus for 2001.

Grabovac also failed to offer any evidence that Allstate retaliated against her in

violation of the EPA.

Contrary to Grabovac's argument, the district court did not abuse its discretion

in striking Grabovac's designation of Howard Danzig as an expert witness and

excluding his affidavit and report from consideration. As the district court held,

"Danzig's affidavit and report offer improper opinions concerning [Allstate's]

compliance with NASD regulations, offer numerous hearsay assertions of fact wholly

improper from an expert witness, and offer numerous irrelevant and improper

conclusions concerning [Allstate's] business judgment." 

We have considered Grabovac's other arguments, and they are without merit.

Accordingly, we affirm the judgment of the district court.

____________________