### The Honorable William G. Cambridge, Chief Judge, UnitedStates

District Court for the District of Nebraska. _____________ No. 96-2251

_____________ Jodee Lang, * * Plaintiff - Appellant, * Appeal from the United States * District Court for the v. * District of Nebraska. * Star Herald, * * Defendant - Appellee. *

_____________ Submitted: November 12, 1996 Filed: March 6, 1997

_____________ Before FAGG, BEAM, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge.

Jo dee Lang appeals from the district court's grant of summar y 1 judgment to the Star Herald in this Title VII case, in which Lang alleges gender discrimination on the basis of her pregnant status. We affirm.

I.

Viewed in the light most favorable to Lang, the record reveals th e following facts. Jodee Lang began working as a part-time employee for the Star Heraldin April of 1991 and moved to full-time status in November of 1992. Under the Star Herald 's employee benefits policy, which is outlined in an employee handbook, Lang

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accumulated vacation time and sick leave based upon the number of hours sh e worked.
In early May 1993, Lang informed her supervisor, Scott Walker, that she was pregnant. She continued working during her pregnancy until sh e took on e week of vacation from June 7 through 11. During her vacation , Lang e xperienced some bleeding associated with her pregnancy and wa s advised by her physician not to return to work until it stopped.

On Monday, June 14, 1993, Lang left a message for Walker, statin g that she would not be in because she had a medical appointment. The next day, Lang phoned Walker and read him a note from her doctor, whic h recommended rest for two weeks. During this conversation, she asked Walke r whether the Star Heraldhad a short-term disability policy; he replied tha t he would find out for her. Lang was absent from work the entire week of June 14- 18 and was paid with the balance of her accrued sick leave an d vacation time.

Walker phoned Lang on June 23 and informed her that her sick leav e had expired and she had no remaining paid vacati on time. He also reported that the Star Herald did not have a short-term disability policy. Walker said he would have to let her go but agreed not to take any action until after Friday, June 25.

That Frid ay, Lang told Walker that her doctor had told her not t o
resume work because she was still incurring pregnancy-related problems

. Lang said she would know after her medical appoi ntment on Monday, June 28, when she could return to work. Walker promised not to take any actio n until after that time.

On June 2 8, Lang's doctor recommended that she take additional time off from her job and said he could not predict w hen she could resume work. When Lang informed Walker of the doctor's recomm endation, Walker explained the Star Herald 's policy for

### C ongress enacted the PDA to overturn General Elec. Co. v

.

Gilbert , 429 U.S. 125, 136-38 (1976), which had held that a pregnancy-related exclusion inan employee disability plan did not violate Title VII. In Gilbert , a majority of the Court relied on equal protection analysis as set out in Geduldig v. Aiello , 41 7 U.S. 4 84, 494-97 (1974), to conclude that discrimination on th e basis of pregnancy was not sex discrimination. By enacting th e PDA, Congress not only overtur ned the holding of Gilbert , but also refute d the Court's reasoning in that case. Newport New s Shipbuilding & Dry Dock Co. v. EEOC , 462 U.S. 669, 678 (1983). As a re sult of the PDA, the Title VII terms "because of sex" or "o n the basis of sex" include discrimination on the basis of pre gnancy, childbirth, or related medical conditions. 42 U.S.C. § 2000e(k).
3 unpaid le aves of absence. The policy provides that an employee who ha s exhausted her paid leave time can apply for an unpaid leave of absence, bu t the Star Herald does not guarantee that it will hold open the employee's position during her absence. Walker asked Lang to apply for an indefinite leave of a bsence, but Lang refused to do so because she would not b e guaranteed re-employment. As a result of her re fusal, her employment with the Star Herald was terminated.

Lang filed a charge of discrimination with the Equal Employmen t Opportunity Commission and then timely filed this suit. The Star Herald filed a motion for summary judgment, which was eventually granted by the district court. This appeal followed.

II.

Title VII makes it "an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discrim inate against any individual with respect to his compensation , terms, conditions, or privileges of employment, because of suc h individual's . . . sex." 42 U.S.C. § 2000e-2(a) (1994). In 1978, Congres s enacted the Pregnancy Discrimination Act (PDA), amending the definitional provi sion of Title VII to clarify that discrimination "on the basis o f pregnancy, childbirth, or related medical conditions" is sex discriminatio n under Title VII. Id. § 2000e(k). 2

### 4 Lang claims that the Star Heraldill egally discriminated against her
on the basis of her pregnancy by denying her an indefinite leave of absenc e with a guarantee that she could return to her position. Lang appeals the district court's grant of the Star Herald 's motion for summary judgment, arguing th at her Title VII claim should survive under the theories o f disparate treatment and disparate impact.

"We revi ew the district court's grant of summary judgment de novo , apply ing the same standard as the district court did and examining th e
rec ord 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 "show[s] that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgmen t as a matter of law." Fed. R. Civ. P. 56(c); Cel otex Corp. v. Catrett , 477 U.S. 317, 322 (1986).
We begin with Lang's disparate treatment claim. She does not offer any direct evidence of discriminatory intent to support her claim, so we analyze the facts und er the familiar burden-shifting framework set out by 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, 252-56 (1981); McDonne ll Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). Under this framework, Lang must first hav e evidence t hat will establish a prima facie case, namely, (1) that sh e belonged to a protected class, (2) that she was qualified to receive the bene fit of an indefinite unpaid leave of absence with a guarantee o f returning to her former position, (3) that she w as denied the benefit, (4) and th at the same benefit was available to others with simila r qualifications. See Adams v. Nolan , 962 F.2d 791, 794 (8th Cir. 1992). If sh e successfully establishes a prima facie case, the burden o f production shifts to the Star Herald to

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offer a nondiscriminatory reason for its action. Stevens v. St. Loui s Univ. Medical Ctr. , 97 F.3d 268, 270-71 (8th Cir. 1996). Once the Star Herald advances a nondiscriminatory reason, Lang must show, in this summar y judgment proceeding, that she has sufficient admissible evidence from whic h
a ration al factfinder could find that the Star Herald 's proffere d nondiscriminatoryreason was either untrue or not the real reason, an d that intentional discrimination was the real reason. Hicks , 509 U.S. at 515; Ryther v. KARE 11 , No. 97-3622, slip op. at 8-9 n.5 (8th Cir. Mar. 6, 1997) (en b anc); see also Ryther , slip op. at 35 n.13 (Part I.A. o f concurring and dissenting opinion, in which eight active judges joined).

La ng argues, based on an instruction in the Eighth Circuit Mode l Civil Jury Instructio ns and on St. Mary's Honor Center v. Hicks , that she does not n eed to show that she was treated differently than similarl y sit uated employees. She contends that she need only show that he r pregnan cy-related situation was a motivating factor in her discharge

. Lang's position is premised upon a fundamental m isunderstanding of the law when a claim of sexual discrimination is address ed in the summary judgment setting. Title VI I requires employers to treat employees who are members o f protected classes the same as other similarly situated employees, but it does not create substantive rights to preferential treatment. 42 U.S.C. § 2000e-2(j) (1994). Thus, as the prima facie elements enumerated above demonstrate, Lang must have evidence that she wa s treated differently than similarly situated employees. In fact, the PDA specifically states that "women affected by pregnancy, childbirth, or related medical condition s shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit program s, as other persons not so affected but similar in their ability or inability to work ." 42 U.S.C

. § 2000e(k) (1994) (emphasis added). See also Carney v. Martin Luther Home , Inc. , 824

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F.2d 643, 646 (8th Cir. 1987) ("Congress sought to limit the burden o n employers by making c lear that the amendment was intended only to prevent the exclusionof pregnancy coverage, not to requ ire that employers who had
no disability or medical benefits at all provide them to pregnant women.")

. As the Seventh Circuit candidly stated, "The [PDA] does not require that employers make accommodations for their pregnant workers; `employers can treat pr egnant women as badly as they treat similarly affected bu t nonpregnant employees .'" Geier v. Medtronic, Inc. , 99 F.3d 238, 242 (7th Cir. 1996) (quoting T roupe v. May Dep't Stores Co. , 20 F.3d 734, 738 (7th Cir. 1994)). The plaintiff's burden of establishing a prima facie cas e serves, in part, to assure that the plaintiff has some competent proof tha t she was treated differently than similarly situated employees.
Eight h Circuit Model Civil Jury Instruction § 5.91, on which Lan g relies , is fully consistent with the requirement that Lang initiall y establish her prima facie case. True, as Lang p oints out, the instruction does not explain the McDonnell Douglas framework, including the prima faci e elements. See Manual of the Model Civil Jury Instructions for the Distric t Courts of the Eighth Circuit § 5.91 (1995). Reference to this comple x analysis is not neces sary, however, or even recommended. Grebin v. Sioux Falls Indep. Sch. Dist. No. 49-5 , 779 F.2d 18, 20 (8th Cir. 1985); see als o Ryther , slip op. at 36 (seven active judges of the en banc court joining Part IIA of Judge Loken's separate opinion, whic h said district courts are not "constrained to instruct how discrimination can be proved" and which rejected Kehoe v. Anheuser-Busch, Inc. , 96 F.3d 1095, 1105 (8th Cir. 1996) , which had stated that "the district courts in th is circuit are constrained to instruct juries on the elements of the prima facie case."). The burden

shiftin g analysis is simply a procedural framework that progressivel y foc uses the inquiry on the question of whether a material issue o f dis crimination in fact exists. See Hicks , 509 U.S. at 506-10. Mode l instruction § 5.91 properly focuses on the single ultimate factual issue for the jury -- whether the plaintiff

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is a victim of intentional discrimination -- and does not conflict with th e requirement that Lang must initially establish a prima facie case to avoid summary judgment or judgment as a matter of law when the case is tried.

Lang's reliance on Hicks is likewise misplaced. In Hicks , th e Supreme Court explained the requirement that a plaintiff must ultimately prove that the defendant's proffered reason for its action is merely a "pretext f or discrimination." Hicks , 509 U.S. at 508-11. The entir e discussion in Hicks operates on the understanding that the plaintiff had already established a prima facie case; indeed, if a plaintiff fails i n thi s endeavor, the plaintiff will be directed out at the close of th e plaintiff's evidence. Id. at 506; Burdine , 450 U.S. at 252-53. Unde r clearly settled law, Lang has the initial burdenof establishing her prima facie case in order to raise the rebuttable presumption of se x discrimination. Id.
Alternatively, Lang contends she has actually produced evidenc e establishi ng her prima facie case. The district court held that Lan g failed to do so, because she submitted no evidence that the Star Heral d denied her a benefit that she was qualified to receive and that other , nonpregnant employees did receive. We agree. The Star Herald 's employee handbook indicates th at the policy for leaves of absences was essentially the same for pregnant and nonpregnant employees, and that no one wa s qualified to receive the benefit Lang sought, viz., an indefinite unpaid leave of absence with a guarantee of a job when the employee wanted t o return to work.

Lang ar gues that the policy was in fact discriminatory. She firs t points to a nonpregna nt coworker, Peggy Carbojol, who allegedly was given indefinite time off for personal reasons. The benefit Carbojol received
was quite different, however, from the one Lang sought. Carbojol' s absence, which amounted to only one

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day , was covered by her accrued paid leave time. The evidence o f Carbojol's leave does not show that Carbojol or any employee was granted unpaid leave time with a guarantee of re-employment as Lang sought, no r does it establish that Lang was qualified to receive that benefit.
Lang also makes a comparison to another nonpregnant coemployee , Teresa M artinez, who was granted a variance from the leave policy

. According to Lang's brief (p. 10), Martinez asked for and received three to four days off without pay at the commencement of her employment period. The be nefit Martinez received differs significantly from the one Lan g sought in that Martin ez's period of unpaid leave was definite in duration

-- four days at the most. Like the Carbojol evidence, this evidence o f Martinez's leave does not advance Lang's case.
Because Lang has produced no evidenc e to show that the Star Herald 's indefinite-leave-of-absence policy was different for her than it was for nonpregnant employees, we conclude that Lang failed to establish a prima facie case. Lang has not submitted evidence showing that she is qualifie d to r eceive an unpaid indefinite leave of absence with a guarantee o f returning to her posi tion or that the Star Herald has ever granted such a benefit to other employees.
Lang main tains that the fact that she asked for indefinite leave is unimportant, because coworkers could have covered for her. The relevant question, however, is whether the Star Heraldtreated Lang differently tha n nonpregnant employees on an indefinite leave of absence, not whether the Star Heraldcould have made more concessions for Lang. We emphasize again that Title VII does not create rights to preferential treatment. 42 U.S.C

. § 2000e-2(j) (1994).
Finally, Lang contends that she actually had five remaining unpai d vacation days to use at the time she was discharged. She

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points to a policy provision in the employee han dbook, which states: "All employees eligible fo r vacation who have not earned two weeks of vacation during the year may take unpaid time off in addition to their paid vacatio n time off up to a total of two weeks off during the year." (J.A. at 72.) Lang contends that because she had only accumulated 40 hours (5 days) of vacation time at the time she was terminated (June), she could have taken 5 unpaid days under this provision.
We agree with the district court tha t this provision applies only to newly hired employees who have not yet worked for the Star Herald for one year. At the time Lang was discharged, she had worked for the Star Herald for more than two years. The provision is therefore inapplicable here.

We do not address Lang's arguments that the Star Herald 's proffered reason for its employment decision was pretext f or discrimination, because her failure to establish her prima facie case means that the burden o f pro duction of the employer's allegedly nondiscriminatory reason neve r arises.

Lang also argues her case under the theory of disparate impact. The district court dismissed Lang's disparate impact claim because she had not specifically alleged in her pleadings that the Star Herald 's unpaid leave pol icy has a disproportionate impact on pregnant women. Because Lang' s disparate impact claim fails as a matter of law, we decline to address the pleading issue. To establish a prima facie case of disparate impact, Lang must show that the Star Herald 's facially neutral policy is in fac t unjustifiablymore harsh on pregnant women than on other people. Krauel

v. Iowa Methodist Medical Ctr. , 95 F.3d 674, 681 (8th Cir. 1996). To prov e this, Lang "must offer `statistical evidence of a kind and degre e sufficient to show that the practice in questionhas caused the exclusion' of benefits because the beneficiaries would be women." Id. (quoting Watso n v. Fort Worth Bank & Trust ,

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487 U.S. 977, 994 (1988)). Lang has provided no statistical support for her claim, and in fact concedes in her brief tha t "there is no evidence of statistical imbalance with this small [of] an em ployer." (Appellant's Br. at 26-27.) A s a result, there is no evidence in this record of a dispro portionatelyadverse impact on pregnant women, and we affirm th e district court's judgment because Lang cannot es tablish a prima facie case of disparate impact.

III.
For the above reasons, we affirm the judgment of the district court.

A true copy.

Attest:

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