United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 00-1757EM

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Patrice Diane Greer, *

*

Appellant, *

* On Appeal from the United

v. * States District Court

* for the Eastern District

St. Louis Regional Medical Center, * of Missouri.

also known as St. Louis Connectcare, * 

also known as Connectcare, *

*

Appellee. *

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 Submitted: May 2, 2001

 Filed: July 31, 2001

___________

Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG,

Circuit Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.

Patrice Greer appeals the District Court’s adverse grant of summary judgment

in her employment discrimination case against St. Louis Regional Medical Center

(Regional), her former employer. Ms. Greer was employed at Regional as a full-time,

hourly paid biomedical engineering technician (BET) in the dialysis unit, where she was

on call twenty-four hours a day, seven days a week. She was called in to repair

equipment on her days off, including days when she was on vacation or sick leave. In
1

It may be significant that the notice of appeal was on a form supplied to this pro

se litigant by the District Court's Clerk's office. This form contains no space to enter

anything as a judgment or order appealed from other than the final judgment disposing

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her complaint in this action, Ms. Greer alleged that Regional discriminated against her

because of her race and gender, in violation of Title VII and 42 U.S.C. § 1981, and

treated her differently from white male employees by: (1) requiring her to be on call

and calling her in to work when she was sick or on vacation; and (2) subjecting her to

less favorable terms with respect to time off and pay for overtime, travel, sickness, and

being on call or called back. The plaintiff also alleged she was harassed and

constructively discharged in violation of section 1981. After de novo review, see

Winkle v. S.W. Bell Tel. Co., 195 F.3d 418, 420 (8th Cir. 1999), we affirm in part and

reverse in part. 

Regional argues first that the appeal is procedurally deficient. Regional filed,

and won, three separate motions for summary judgment in the District Court. The first

motion, made in June of 1999, concerned claims of harassment and constructive

discharge, and argued that plaintiff had failed to exhaust those claims before the Equal

Employment Opportunities Commission. The second motion, filed in October of 1999

and granted in November of that year, concerned plaintiff's claims of disparate

treatment. The third motion, filed in February of 2000, concerned remaining claims of

constructive discharge and racial harassment under 42 U.S.C. § 1981. Final judgment

was entered on March 1, 2000. The notice of appeal, filed on March 7, 2000, specified

the following as the orders or judgments being appeal: "The final judgment entered in

this action on the 18th day of February, 2000; 1st day of March, 2000." We take the

reference to "the final judgment entered in this action on the 18th day of February,

2000," to mean the entry of summary judgment on that date in response to Regional's

third motion for summary judgment. Thus, the notice of appeal refers expressly only

to the final judgment and the third summary-judgment order. It does not mention either

of the first two summary-judgment orders.1
of the whole case. The plaintiff wrote in the order of February 18, 2000, in that space,

and then underneath that printed line added "1st day of March, 2000," the date of the

final judgment. See Defendant-Appellee's Appendix (App.) 280.

2The brief asserts that "Ms. Greer was placed on a 24 hour call status and given

a pager to be called back to work," Brief for Appellant 1, and that "two white males

were not subjected to 24 hour call status . . .." Id. at 2.

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Fed. R. App. P. 3(c) requires a notice of appeal to "designate the judgment,

order, or part thereof appealed from." Fed. R. App. P. 3(c)(1)(B). Ordinarily, a notice

of appeal that specifies the final judgment in a case should be understood to bring up

for review all of the previous rulings and orders that led up to and served as a predicate

for that final judgment. Orders granting summary judgment on fewer than all claims

are not immediately appealable. Review must await a final judgment disposing of all

claims and, normally, attended by the formalities specified in Fed. R. Civ. P. 58. Thus,

there is no question that the notice of appeal here is timely. The only question is

whether it brings up for review the first two summary-judgment orders. Regional,

when reading the notice of appeal, might have thought that the only summary-judgment

order contested was the third one, but it does not claim that it took any detrimental

action in reliance on such an impression, and plaintiff's brief, when filed, does argue her

disparate-treatment theory (the subject of the second summary-judgment order), though

it does so inartfully.2 We do not think that the rules specifying the contents of notices

of appeal should be interpreted strictissimi juris, especially in dealing with pro se

litigants, where the appellee shows no prejudice. In addition, the judgment entered on

March 1 recites, as its basis, the fact that "summary judgment has been ordered against

the plaintiff on all counts of her complaint . . .." App. 279. It is fair to interpret this

language as incorporating the three summary-judgment orders previously entered.

Accordingly, we hold that the entire case is properly before us for review on this

appeal. "[I]t is important that the right to appeal not be lost by mistakes of mere form."

Advisory Committee Note to 1979 Amendments to Fed. R. App. P. 3(c).
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As to her disparate-treatment claims, we conclude that the plaintiff established

a prima facie case of race and gender discrimination. The summary-judgment evidence,

viewed in the light most favorable to Ms. Greer, showed that she identified four BETs,

three of them full-time, hourly paid white men, who were not required to be on on-call

status all the time. One of these BETs had been specifically trained to repair the

dialysis equipment. Greer attested that when these BETs were off duty and were called

back to repair equipment, they were paid call pay, travel pay, and call-back pay, but

that she received this pay only one time in four years. Regional points out that Ms.

Greer's evidence of how other BETs were treated was based mainly on what they had

told her, and argues that this hearsay cannot be considered on a motion for summary

judgment. However, Regional did not contest these representations in the District

Court, and, in fact, they appear to be validated by Regional's own evidence. Brenda

Bingel, Ms. Greer's supervisor, attested to the reasons for the alleged different

treatment, and this evidence must be taken to assume that the different treatment did

in fact occur. We believe this record is sufficient to show that other BETs were

similarly situated to Greer for Title VII purposes, but were treated better. See Harvey

v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994); Williams v. Ford Motor

Co., 14 F.3d 1305, 1307-08 (8th Cir. 1994).

We also conclude Regional did not proffer a legitimate, nondiscriminatory reason

for Greer’s treatment. To explain the difference in on-call status and related pay,

Regional asserted simply that Ms. Greer was an employee in the dialysis unit, while the

other BETs were in the biomedical engineering department. An employer may make

its own business decisions, and we do not sit as a super-personnel department. See

Harvey v. Anheuser-Busch, Inc., supra, 38 F.3d at 973. But Regional has asserted no

reason good enough, on summary judgment, to justify the distinction between the two

departments. Why were other BETs, three of them white men, one of whom had been

specifically trained to repair dialysis equipment, paid call pay, travel pay, and call-back

pay when they were called back to repair equipment? Ms. Greer received none of

these benefits. Regional asserts that other employers in the area followed a similar
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practice, and such a market justification could certainly be plausible. However, Ms.

Greer testified that other St. Louis area dialysis units did pay their technicians call pay.

Thus, there is a genuine issue of material fact on this question.

The District Court properly granted summary judgment to Regional on Ms.

Greer’s claims of discriminatory harassment and constructive discharge brought under

section 1981, see Palesch v. Mo. Comm’n on Human Rights, 233 F.3d 560, 566-67

(8th Cir. 2000) (prima facie hostile-work-environment claim requires causal nexus

between harassment and protected group status); Whidbee v. Garzarelli Food

Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (§ 1981 provides cause of action for

race-based employment discrimination based on hostile work environment; hostile

work environment shown when incidents of harassment occur either in concert or with

regularity that can be termed pervasive); Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d

490, 496 (8th Cir. 1996) (dissatisfaction with work assignment is normally not so

intolerable as to be basis for constructive discharge). 

Accordingly, we affirm the grant of summary judgment as to Ms. Greer’s

harassment and constructive-discharge claims, we reverse as to her Title VII disparatetreatment claims, and we remand for further proceedings.

A true copy.

Attest:

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