United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-1184

___________

David A. Johnson, on his own behalf *

and on behalf of all others similarly *

situated, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the Southern 

* District of Iowa.

University of Iowa; State Board of *

Regents; David J. Skorton, in his *

official capacity; Douglas K. True, in *

his official capacity; Susan Buckley, in *

her official capacity, *

*

Defendants - Appellees. *

___________

Submitted: September 13, 2005

 Filed: December 15, 2005 

___________

Before MELLOY, LAY, and BENTON, Circuit Judges.

___________

MELLOY, Circuit Judge.

David Johnson brought suit against his employer, the University of Iowa

(“University”), alleging that the University’s Parental Leave Policy violated the Equal

Protection Clause of the Fourteenth Amendment of the United States Constitution, the

Equal Protection Clause of the Iowa Constitution, Title VII of the Civil Rights Act of
1

 The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa.

-2-

1964, and the Iowa Civil Rights Act. The district court1

 granted summary judgment

to the defendants on all claims. We affirm.

I. Background

In 2002, Johnson and his wife, Jennie Embree, were expecting a baby girl. At

that time, Johnson worked full-time in the Office of the Registrar at the University,

and Embree worked part-time in the University’s College of Nursing. While attending

a class that explained the details of the University’s Parental Leave Policy, Johnson

was told that he, unlike Embree, could not use accrued sick leave to be paid for

absences after the birth of their daughter.

The applicable portion of the Parental Leave Policy, as contained in Chapter 22

of the Operations Manual which governs the employment of Embree and Johnson,

states:

22.8 PARENTAL LEAVE POLICY

a. Purpose. To permit parents who have care giving responsibilities to

have time off to spend with a child newly added to the family and, to

the extent permitted by state law, to be paid during such leave. To

adapt an employee's work schedule and/or duties to help reduce

conflict with parental obligations. 

b. Entitlement to Leave. 

(1) Twelve-Month Faculty, Professional, Scientific, and Non-Organized

Merit System Staff. 

(a) Biological mothers are entitled to leave for any period of

pregnancy-related temporary disability, to be charged against

accrued sick leave. Based on current medical practice, a leave

of six weeks or less would not require the employee to provide
-3-

disability documentation. If an employee's accumulated sick

leave is insufficient to cover the period of disability, the

employee will, at the employee's request, be granted a leave of

absence to be charged to vacation time, compensatory time, or

a leave of absence without pay. Any request for absence

beyond the period of disability is considered as a leave of

absence without pay or as vacation. 

(b) A newly adoptive parent, including a domestic partner, is

entitled to one week (5 days) of paid adoption leave to be

charged against accrued sick leave. Departments are

encouraged to arrange for additional leave as necessary.

Departments should work with prospective adoptive parents

seeking to adopt through an adoption agency with specific

requirements for parental leave, to the extent the adoption

leave is not sufficient to undertake an adoption. Time not

charged to accrued sick leave may be charged to accrued

vacation or taken as leave without pay. 

Johnson disagreed with the class instructor’s interpretation of the policy, so he sought

clarification from other representatives from the University’s human resources

department as well as the president of the University. After being consistently told

that biological fathers were not allowed to use accrued paid sick leave for absences

following the birth of a child, Johnson filed a complaint with the Iowa Civil Rights

Commission and the Equal Employment Opportunity Commission. He obtained rightto-sue letters and initiated this case in the district court. He was subsequently certified

to represent the class of similarly-situated biological fathers employed by the

University. 

Johnson argues that the University’s Parental Leave Policy is discriminatory on

its face because it allows biological mothers and adoptive parents to use accrued sick

leave after the birth or arrival of a new child without extending a similar benefit to

biological fathers. Johnson also contends that the policy is discriminatory as applied
-4-

because the University denied his request to use accrued sick leave but granted

Embree’s request for what Johnson deems “caregiving” leave. 

II. Standard of Review

We review the district court’s grant of summary judgment de novo. Charleston

Hous. Auth. v. United States Dept. of Agric., 419 F.3d 729, 737 (8th Cir. 2005).

Although the facts are largely undisputed in this case, the parties disagree about the

exact nature of the leave the University granted to Embree. Summary judgment is still

appropriate, however, when the disputed facts will not affect the outcome of the suit.

Dodd v. Runyon, 114 F.3d 726, 729 (8th Cir. 1997). For the reasons discussed infra,

we find that even if we take Johnson’s characterization of Embree’s leave as accurate,

his claims still fail as a matter of law.

III. Analysis

The University’s Parental Leave Policy provides biological mothers and

adoptive parents of both genders with the ability to use accrued paid sick leave for

time away from work that is related to the addition of a child. Johnson argues that the

policy is unlawful because the University does not extend this benefit to biological

fathers. All of Johnson’s claims of discrimination rely on this premise.

As the district court correctly noted, to determine whether biological fathers are

being unlawfully discriminated against, we must separately compare them to the two

groups allowed to use accrued paid sick leave: 1) biological mothers and 2) adoptive

parents of both genders. We decline to adopt Johnson’s repeated characterization that

the Parental Leave Policy contains a “biological father exclusion.” Rather, the policy
2 Biological mothers are allowed to use up to six weeks of accrued sick leave

to cover an absence while adoptive parents can use only one week. 

3

 The plaintiff’s claim is expressly premised on alleged violations of Title VII

and the Equal Protection Clause of the United States Constitution; it is not based on

-5-

provides two different sets of benefits to two different groups.2

 The University did

not provide these benefits to Johnson because he is not a member of either group

designated to receive benefits. It did not exclude him on the basis that he is a

biological father.

A. Biological Mothers Versus Biological Fathers 

The University provides biological mothers with the option of using up to six

weeks of accrued paid sick leave after birth. Although only women are eligible to

receive this benefit, the policy does not necessarily present “gender-plus”

discrimination. If the leave given to biological mothers is granted due to the physical

trauma they sustain giving birth, then it is conferred for a valid reason wholly separate

from gender. If the leave is instead designed to provide time to care for, and bond

with, a newborn, then there is no legitimate reason for biological fathers to be denied

the same benefit. Thus, the primary question for us to consider is whether the leave

given to biological mothers is in fact disability leave. 

 Johnson relies heavily on the Parental Leave Policy’s introductory statement

which says its purpose is to “permit parents who have care giving responsibilities to

have time off to spend with a child newly added to the family . . . .” Johnson also

draws our attention to an “Informational Guide” produced by the University which

states: “leave is for the biological mother to recover from childbirth and to spend time

with the newborn child . . . .” Although these purpose statements cloud the issue, they

are not part of the operative language of the policy.3

 The sentence that actually
breach of contract. In the briefs and at oral argument there was considerable

discussion of the prefatory language to the policy that states the University will

provide paid leave “to the extent permitted by state law.” Counsel for the University

acknowledged that the University could lawfully provide paid leave to biological

fathers. In fact, Iowa State University, another institution under the supervision of

Iowa’s Board of Regents, provides the type of paid leave the plaintiff requested in this

case. 

Like the district court, we are troubled because the operative language of the

policy seems to run counter to its prefatory language. However, like the learned

district court judge, our duty is not to pass on the “fairness” of the policy, but rather

to determine whether it is unconstitutional or in violation of any statute. 

-6-

confers the benefit at issue states: “Biological mothers are entitled to leave for any

period of pregnancy-related temporary disability, to be charged against accrued sick

leave.” This policy language does not allow mothers to use accrued sick leave after

their period of disability has ended. Thus, the period away from work constitutes

disability leave, even though mothers are likely caring for their newborns during this

period. Allowing biological mothers pregnancy-related disability leave on the same

terms as employees with other disabilities is not only permissible, but is required by

the Pregnancy Discrimination Act of 1978. Pub. L. No. 95-555, 92 Stat. 2076 (1978).

Johnson argues that the University’s paid maternity leave cannot be interpreted

as disability leave because the University does not require proof of a disability when

the leave taken after giving birth is six weeks or less. We reject this argument because

it is not unreasonable for the University to establish a period of presumptive disability

so that it does not need to review medical records for each and every employee who

gives birth. In support of its motion for summary judgment, the University provided

testimony that a six-week period of disability after childbirth is supported by medical

evidence. Although Johnson submitted Embree’s affidavit claiming that she was fully

recovered from childbirth after four weeks, he has offered no medical evidence

indicating that the general period of recovery is less than six weeks. For all of these
4 This also bolsters the University’s argument that it operates under the

assumption that women generally need six weeks to recover from childbirth. 

-7-

reasons, we find that the policy’s provisions distinguishing between biological

mothers and biological fathers are not facially invalid. 

Johnson also contends that even if these provisions are facially valid, they are

discriminatory as applied. He claims that Embree was given four weeks of medical

leave and then two weeks of paid “parental leave,” but that his request to take any paid

leave was denied. Embree’s affidavit asserts that she decided to take four weeks of

medical leave and then an additional two weeks of partial leave “for the exclusive

purpose of spending time with and caring for [her] newborn child.” Embree’s

affidavit also contends that she made the reasons for her requested leave known to a

supervisor. 

In considering this motion for summary judgment, we must assume that

Embree’s assertions are accurate because “we take the non-movant's evidence as true,

drawing all reasonable inferences in his or her favor.” Scusa v. Nestle U.S.A. Co.,

181 F.3d 958, 964 (8th Cir. 1999). Embree’s reasons for requesting leave are not at

issue, however. We are only concerned with the University’s motivation in granting

the leave. The University required Embree to obtain a medical release before she

voluntarily returned to work on a part-time basis four weeks after giving birth.4

Johnson contends that this release proves that the subsequent two weeks of part-time

leave granted to Embree were for “caregiving” purposes and not disability leave. This

argument fails to consider the possibility of partial disability leave. In the fifth and

sixth weeks after giving birth, Embree worked only ten hours per week. Furthermore,

she worked from home. Thus, it is not a reasonable inference to assume that Embree

demonstrated that she was medically cleared to return to work full-time without any

restrictions, but was then still allowed to continue to take paid leave. 
-8-

Even if we assume that the University did allow Embree to use accrued sick

leave solely for the purpose of caring for her newborn, Johnson cannot establish that

the policy was improperly applied to him in a discriminatory fashion. To demonstrate

that the University’s stated reasons for treating Johnson and Embree differently are

pretextual–and that Johnson’s gender was the real reason he was discriminated

against–Johnson would have to show that he was treated differently than a “similarly

situated” female employee. Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir.

2005). At the pretextual stage of the analysis, “the test for determining whether

employees are similarly situated to a plaintiff is a rigorous one.” Id. In this stage, the

plaintiff must show that the employee who was treated differently was similarly

situated to him “in all relevant respects.” Id. The same requirement applies to equal

protection claims. “To establish a gender-based claim under the Equal Protection

Clause, the appellants must, as a threshold matter, demonstrate that they have been

treated differently by a state actor than others who are similarly situated simply

because appellants belong to a particular protected class.” Keevan v. Smith, 100 F.3d

644, 647-48 (8th Cir. 1996). 

Johnson and Embree are not similarly situated. They had different job

responsibilities, worked in different departments and reported to different supervisors.

Most significantly, Johnson was a full-time employee and Embree was a part-time

employee. Generally, part-time employees are not similarly situated to full-time

employees. See Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 660 (8th Cir. 2001).

Furthermore, even if Embree and Johnson were similarly situated from an

employment perspective, at the time Embree allegedly received parental leave for

caregiving purposes, she was only a month removed from childbirth. Even if Embree

was medically released to begin working from home on a part-time basis, the fact that

she had recently gone through the physical trauma of labor is a distinguishing

characteristic between her and Johnson. Accordingly, Johnson’s “as applied”

challenge to the biological mother classification fails. 
-9-

Johnson urges us to find that the Equal Protection Clause of the Iowa

Constitution provides broader protection than the Equal Protection Clause of the

United States Constitution. His argument relies on Racing Ass’n of Cent. Iowa v.

Fitzgerald, 675 N.W.2d 1 (Iowa 2004), in which the Iowa Supreme Court found that

different tax rates on the slot machines of racetracks and river boats violated the Iowa

Constitution even though the United States Supreme Court had ruled that the differing

tax rates did not violate the United States Constitution. Although the Iowa Supreme

Court noted that the federal constitutionality of a law is “not binding” on whether the

law violates the Iowa Constitution, such a conclusion was deemed to be “persuasive.”

Id. at 5. For the reasons already discussed, we believe that even if the Iowa Supreme

Court conducted an independent analysis of this policy under its state constitution, it

would also uphold the policy.

B. Biological Fathers v. Adoptive Parents 

The Parental Leave Policy’s classification allowing adoptive parents to use

accrued sick leave does not discriminate on the basis of gender. It provides exactly

the same benefits to adoptive fathers as to adoptive mothers. Nonetheless, Johnson

argues that the policy is unlawful because it extends benefits to adoptive parents but

not to biological fathers. To analyze the merits of this claim we must first determine

the requisite level of scrutiny. 

Johnson contends that the policy should be reviewed with strict scrutiny

because it interferes with his fundamental rights of child-rearing. Although the

Supreme Court has recognized a number of fundamental rights concerning parents’

ability to raise their children, Johnson offers no precedent establishing that these rights

include the ability to take time off from work to bond with a child. Furthermore,

Johnson was allowed to take unpaid leave in accordance with the Family Medical

Leave Act. He sued the University because he was unable to receive paid leave. The
5The parties disagree as to whether the policy allows for the use of accrued sick

leave to cover absences prior to the arrival of the adopted child, but this fact is not

material. Even if the policy does not allow prospective adoptive parents to use

accrued sick leave in this fashion, the resulting need for adoptive parents to take

unpaid time off prior to the child’s arrival provides a legitimate reason to make it

easier for them to take paid leave after the child’s arrival. 

-10-

United States Supreme Court has defined fundamental rights as those rights that are

“deeply rooted in this Nation’s history and tradition.” Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977). The ability to get paid leave from an employer

does not fall into this category.

Because biological fathers are not a suspect class and because the right to paid

leave is not fundamental, the appropriate standard of review is the rational basis test.

Clayton v. White Hall Sch. Dist., 875 F.2d 676, 680 (8th Cir. 1989) (upholding a

school district’s policy of allowing the children of administrative employees, but not

general employees, to open enroll into the district). A classification reviewed under

this standard will be upheld “if it has some reasonable basis.” Id. Adoptive parents

face demands on their time and finances that may be significantly greater than those

faced by biological parents. For example, the benefits of the University’s health

insurance plan offset the medical costs arising when an employee or an employee’s

spouse gives birth. Adoptive parents receive no such insurance benefit to offset the

costs of adoption. Adoptive parents may also be required to take time off from work

to deal with adoption-related administrative concerns prior to the arrival of the child.5

Johnson may be correct that the distinctions between adoptive fathers and biological

fathers are minimal. However, “[t]he process of classifying persons for benefits

inevitably requires that some persons with nearly equal claims will be placed on

different sides of the line, and whether the line might have been better drawn is a

matter for legislative, rather than judicial, consideration.” Id. at 680. Accordingly,

we find that the policy provisions granting benefits to adoptive parents, like those

provisions giving benefits to biological mothers, are not unlawful.
-11-

IV. Conclusion

Because we find that the leave granted to biological mothers is disability leave

and that the University did not apply the policy improperly, Johnson has not

established the requisite adverse treatment of biological fathers that would be

necessary for his Title VII claim to survive. We analyze Johnson’s Iowa Civil Rights

Act claim under the same framework as the Title VII claim, so it must also fail.

Henthorn v. Capitol Communications, Inc., 359 F.3d 1021, 1024 n.2 (8th Cir. 2004).

We hold that there is no fundamental right to paid leave from an employer so

the policy benefits given to adoptive parents need only survive rational basis review.

As the University has articulated legitimate reasons for the classifications made in the

policy, the University is entitled to summary judgment on the claim under the federal

Equal Protection Clause. We also conclude that the policy does not violate the Equal

Protection Clause of the Iowa Constitution even though the protections provided by

that clause are arguably broader than those under its federal counterpart. 

For the foregoing reasons, we affirm the district court’s grant of summary

judgment to the defendant on all claims.

______________________________