United States Court of Appeals

For the Eighth Circuit

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No. 12-3780

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Angela Ames

lllllllllllllllllllll Plaintiff - Appellant

v.

Nationwide Mutual Insurance Company; Nationwide Advantage Mortgage

Company; Karla Neel

lllllllllllllllllllll Defendants - Appellees

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Equal Employment Opportunity Commission; American Civil Liberties Union

Foundation; American Civil Liberties Union of Iowa

lllllllllllllllllllllAmici on Behalf of Appellant

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 Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: May 13, 2014

 Filed: June 26, 2014

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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

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WOLLMAN, Circuit Judge.
Angela Ames appeals from the district court’s grant of summary judgment to 1

NationwideMutual InsuranceCompany, Nationwide AdvantageMortgageCompany,

and Karla Neel (collectively, Nationwide) on her sex- and pregnancy-based

employment discrimination claims brought under Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e et seq., and the Iowa Civil Rights Act (ICRA),

Iowa Code § 216.6. We affirm.

I.

Ames was hired as a loss-mitigation specialist at Nationwide MutualInsurance

in October 2008. Timely completion of work is central to this position and “a high

priority” for the loss-mitigation department as a whole. Brian Brinks was Ames’s

immediate supervisor, and Neel was the head of her department, as well as an

associate vice president. 

Ames gave birth to her first child on May 2, 2009, and took eight weeks of

maternity leave following his birth. In October 2009, Ames discovered that she was

pregnant with her second child. Ames suffered pregnancy complications, and her

doctor ordered her on bed rest in April 2010.

 When Ames discussed her bed rest with Neel, Neel rolled her eyes and said

that she never had to go on bed rest when she was pregnant and that she never had

complications with her pregnancies. Neel had previously expressed to Ames her

belief that a woman should not have a baby shower while she is pregnant because the

baby could die in utero. According to Ames, Brinks remarked to others in the office

about Ames’s maternity leave, stating, “Oh, yeah, I’m teasing her about only taking

a week’s worth of maternity leave. We’re too busy for her to take off that much

The Honorable Robert W. Pratt, United States District Judge for the Southern 1

District of Iowa.

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work.” Nationwide trained Angie Ebensberger, who was a temporary employee at

Nationwide Mutual Insurance, to fill Ames’s position during her maternity leave. 

Ames gave birth to her second child prematurely on May 18, 2010. 

Nationwide thereafter informed Ames that her Family Medical Leave Act (FMLA)

maternity leave would expire on August 2, 2010. On June 16, 2010, Neel called

Ames to inform her that there had been a mistake in calculating her FMLA maternity

leave and that her maternity leave would expire on July 12, 2010. Neel also told

Ames that she could take additional unpaid leave until August 2010, but that doing

so would “cause[] red flags,” that she “[didn’t] want there to be any problems like

that,” and that she “[didn’t] want there to be any issues down the road.” Neel told

Ames that she wanted to find a mutually agreeable date of return and offered to

extend Ames’s maternity leave an additional week. 

Prior to returning to work, Ames asked a Nationwide disability case manager

where she could express milk when she returned to work and was told that she could

use a lactation room. Amesreturned to work on July 19, 2010, when her son wastwo

months old and breastfeeding every three hours. By the time Ames had arrived at

work that morning, more than three hours had passed since her son had last nursed. 

Ames asked Neel about using a lactation room. Neel replied that it was not her

responsibility to provide Ames with a lactation room. Amesthen went to the security

desk to inquire about the lactation rooms and was directed to see Sara Hallberg, the

company nurse. 

Hallberg informed Ames of Nationwide’s lactation policy, which allowed

employees to gain badge access to the company’s lactation rooms after completing

certain paperwork that required three days to be processed. The lactation policy was

available to Nationwide’s employees on the company’s intranet, and Nationwide

provided information regarding the policy at its quarterly maternity meetings. 

Ames’s conversation with Hallberg was the first time that Ames had heard of the

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policy. Hallberg sent a copy of the lactation policy to Ames via email. Hallberg also

requested that security “grant Angela Ames access to the lactation rooms as soon as

possible.” When Ames told Hallberg that she needed to express milk immediately,

Hallberg suggested that Ames use a wellness room. Because the wellness room was

occupied, Hallberg told Amesto return in fifteen ortwenty minutes. Hallberg warned

Ames that lactating in a wellness room might expose her breast milk to germs.

While waiting for the wellness room, Ames met with Brinks to discuss the

status of her work. Brinks told Ames that none of her work had been completed

while she was on maternity leave, that she had two weeks to complete that work, that

she would have to work overtime to accomplish this, and that if she failed to catch up,

she would be disciplined. After the meeting with Brinks, Ames returned to Neel’s

office to see if Neel could help her find a place to lactate. Neel again told Ames that

she was unable to help. Neel testified that Ames was visibly upset and in tears. Neel

then handed Ames a piece of paper and a pen and told Ames, “You know, I think it’s

best that you go home to be with your babies.” Neel dictated to Ames what to write

2

on the piece of paper to effectuate her resignation. 

Ames sued Nationwide, alleging sex and pregnancy discrimination. Her

complaint asserted that the unavailability of a lactation room, “her urgent need to

express milk,” and Nationwide’s “unrealistic and unreasonable expectations about her

work production” forced her to resign from her position. Nationwide moved for

summary judgment, arguing that there was no genuine dispute of material fact that

Nationwide discriminated against Ames. Specifically, Nationwide argued that Ames

had not shown constructive discharge. Ames countered that she had set forth direct

and indirect evidence of discrimination and that she had shown constructive

At other places in Ames’s deposition and in her brief opposing Nationwide’s 2

motion for summary judgment, Ames attributes to Neel different versions of this

statement, such as “[m]aybe you should just stay home” and “[m]aybe you should just

go home with your babies.”

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discharge. Ames did not argue that Nationwide had actually discharged her. The

district court granted Nationwide’s motion, and this appeal followed.

II.

“We review the district court’s grant of summary judgment de novo, applying

the same standards as the district court and viewing the evidence in the light most

favorable to the nonmoving party.” McDonald v. City of Saint Paul, 679 F.3d 698,

703 (8th Cir. 2012) (quoting Zike v. Advance Am., Cash Advance Ctrs. of Mo., Inc.,

646 F.3d 504, 509 (8th Cir. 2011)). Summary judgment shall be granted if “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). 

Title VII prohibits employment discrimination on the basis of sex. 42 U.S.C.

§ 2000e-2(a)(1). As amended by the Pregnancy Discrimination Act of 1978, sexbased discrimination under Title VII includes discrimination based on “pregnancy,

childbirth, or related medical conditions.” Id. § 2000e(k). The ICRA provides the

same prohibitions. See Iowa Code § 216.6. Because Ames presents no separate

arguments under the ICRA, we analyze her ICRA claims together with her Title VII

claims under the same analytical framework used for Title VII claims. See Gilbert

v. Des Moines Area Cmty. Coll., 495 F.3d 906, 913 n.5 (8th Cir. 2007); see also

Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 n.2 (Iowa 1995). 

An employee’s Title VII claim for sex discrimination can survive summary

judgment in one of two ways. First, the employee may produce direct evidence of

discrimination—that is, “evidence showing a specific link between the alleged

discriminatory animus and the challenged decision, sufficient to support a finding by

a reasonable fact finder that an illegitimate criterion actually motivated the adverse

employment action.” Elam v. Regions Fin. Corp., 601 F.3d 873, 878 (8th Cir. 2010)

(quoting McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir.

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2009)). Alternatively, the employee may create an inference of discrimination under

the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), by showing that: (1) she is a member of a protected group; (2) she was

qualified for her position; (3) she suffered an adverse employment action; and (4) the

adverse employment action occurred under circumstances giving rise to an inference

of discrimination. Elam, 601 F.3d at 878-79. Ames purports to have demonstrated

both direct evidence of sex discrimination and an inference of unlawful

discrimination based on her pregnancy under McDonnell Douglas. Because in either

case Ames must demonstrate that she suffered an adverse employment action, we

focus on that question in resolving this appeal.

Ames contends that she has presented sufficient evidence to demonstrate that

Nationwide constructively discharged her or, in the alternative, actually discharged

her. We discuss each theory of discharge in turn. 

A.

“To prove a constructive discharge, an employee must show that the employer

deliberately created intolerable working conditions with the intention of forcing her

to quit.” Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 418 (8th Cir. 2010). 

“In addition, an employee must give her employer a reasonable opportunity to resolve

a problem before quitting.” Sanders v. Lee Cnty. Sch. Dist. No. 1, 669 F.3d 888, 893

(8th Cir. 2012). “Evidence of the employer’s intent can be proven ‘through direct

evidence or through evidence that the employer could have reasonably foreseen that

the employee would quit as a result of its actions.’” Id. (quoting Fercello v. County

of Ramsey, 612 F.3d 1069, 1083 (8th Cir. 2010)).

Ames argues that Nationwide treated her in a manner that would have caused

any reasonable person to resign. Rather than presenting one event as the defining

moment, Ames points to a number of incidents and circumstances that she claims

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collectively constitute constructive discharge. First, Neel and Brinks made negative

statements regarding Ames’s pregnancies. Second, Nationwide miscalculated the

length of Ames’s maternity leave, and Neel insisted that she return to work early or

risk raising red flags. Third, Nationwide trained Angie Ebensberger to fill Ames’s

position during Ames’s maternity leave. Fourth, Ames was not given immediate

access to a lactation room and was told that she had to wait three days for badge

access. Fifth, Brinks told Ames that none of her work had been completed while she

was on maternity leave, thatshe had to work overtime to get caught up, and that if she

did not catch up, she would be disciplined. Sixth, Neel did nothing to assist Ames in

finding a place to lactate and instead told Ames, “I think it’s best that you go home

to be with your babies.” And seventh, at the time Ames resigned, it had been more

than five hours since she had last expressed milk and she wasin considerable physical

pain.

Nationwide’s several attempts to accommodate Ames show its intent to

maintain an employment relationship with Ames, not force her to quit. See Fercello,

612 F.3d at 1083 (holding that the employer’s willingness to accommodate the

employee undercut the employee’s claim of constructive discharge). Although

Nationwide incorrectly calculated Ames’s FMLA leave, it made effortsto ameliorate

the impact of its mistake. Neel did not discourage Amesfrom taking the FMLA leave

to which Ames was entitled. Furthermore, even though Neel discouraged Amesfrom

taking unpaid leave up to August, Neel gave Ames an extra week of maternity leave,

which gave Ames more than thirty days to prepare for her return to work. Rather than

intentionally rendering Ames’s work conditions intolerable, the record shows that

Nationwide sought to accommodate Ames’s needs.

Moreover, Ames was denied immediate accessto a lactation roomonly because

she had not completed the paperwork to gain badge access. Every nursing mother

was required to complete the same paperwork and was subjected to the same threeday waiting period. Further, Hallberg tried to accommodate Ames by allowing her

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to use a wellness room as soon as it was available and by requesting that Ames

receive expedited accessto the lactation rooms. During Ames’s meeting with Brinks,

Brinks relayed his expectations of her in the upcoming weeks and the consequences

of failing to meet those expectations. Brinks’s expectations of Ames were not

unreasonable, for he expected all of his employees to keep their work current, given

the high priority that timely work-completion is accorded within the loss-mitigation

department. That Nationwide’s policies treated all nursing mothers and lossmitigation specialists alike demonstrates that Nationwide did not intend to force

Ames to resign when it sought to enforce its policies. See Allen v.

Bridgestone/Firestone, Inc., 81 F.3d 793, 797 (8th Cir. 1996) (“Where, as here,

employees are treated alike, ‘no particular employee can claim that difficult working

conditions signify the employer’s intent to force that individual to resign.’” (quoting

Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985))). 

Assuming for the sake of analysis, however, that Neel’s comment that it was

best that Ames go home with her babies could support a finding of intent to force

Ames to resign, Ames’s constructive discharge claim still fails because she did not

give Nationwide a reasonable opportunity to address and ameliorate the conditions

that she claims constituted a constructive discharge. See, e.g., Sanders, 669 F.3d at

893; Alvarez, 626 F.3d at 418; Coffman v. Tracker Marine, L.P., 141 F.3d 1241,

1247-48 (8th Cir. 1998). The only way in which Ames attempted to alert Nationwide

to the problem was by asking Neel twice about obtaining a lactation room and by

approaching Hallberg about the same problem, all on the morning that Ames

resigned. Moreover, when Ames approached Hallberg about the problem, Hallberg

suggested to Ames a temporary solution. Although this solution may not have been

immediately available or ideal, Ames had an obligation not to jump to the conclusion

that the attempt would not work and that her only reasonable option was to resign. 

See Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 461 (8th Cir. 2011) (“Part of an

employee’s obligation to be reasonable is an obligation not to assume the worst, and

not to jump to conclusions too fast.” (quoting Smith v. Goodyear Tire & Rubber Co.,

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895 F.2d 467, 473 (8th Cir. 1990))). Ames also failed to avail herself of the channels

of communication provided by Nationwide to deal with her problem. See Coffman,

141 F.3d at 1247-48 (reversing a constructive-discharge judgment in part because the

employee had an avenue of redress within the company and failed to use it).

Nationwide’s Compliance Statement, of which Ames was aware, provides: “If you

have reason to believe that Nationwide is not in compliance with the law, contact

your local HR professional, the Office of Ethics, or the Office of Associate Relations

to report the circumstances immediately.” By not attempting to return to Hallberg’s

office to determine the availability of a wellnessroom or to contact human resources,

Ames acted unreasonably and failed to provide Nationwide with the necessary

opportunity to remedy the problem she was experiencing. We thus conclude that

Ames has not met her burden of demonstrating constructive discharge. 

Ames argues that we should apply the alternative constructive discharge

analysis employed by the Seventh Circuit in non-hostile work environment cases. 

See EEOC v. Univ. of Chi. Hosps., 276 F.3d 326 (7th Cir. 2002). In University of

Chicago Hospitals, the Seventh Circuit said that there are two ways for an employee

to prove constructive discharge. One is proof of unbearable working conditions. The

other is that “[w]hen an employer acts in a manner so as to have communicated to a

reasonable employee that she will be terminated, and the plaintiff employee resigns,

the employer’s conduct may amount to constructive discharge.” Id. at 332. 

This court has not recognized the second form of constructive discharge in our

non-hostile work environment cases, see, e.g., Trierweiler, 639 F.3d at 459-61;

Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494-97 (8th Cir. 1996); Johnson v.

Bunny Bread Co., 646 F.2d 1250, 1256-57 (8th Cir. 1981), but Ames could not

prevail under the alternative theory in any event. The second theory still requires the

employee to demonstrate that working conditions had become intolerable. Chapin

v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010). In addition, the

employee must show that if she had not resigned, then she would have been

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immediately fired. Id. at 680. Assuming that Neel’s statement to Ames evinced a

desire by Neel to encourage resignation, it does not support a reasonable belief that

Ames would have been fired immediately if she opted to continue her employment.

B.

On appeal, Ames argues that a genuine issue of material fact exists as to

whether she was actually discharged. Nationwide argues that Ames has waived this

argument because she did not raise it in the district court. We agree.

“As a general rule, we do not consider arguments or theories on appeal that

were not advanced in the proceedings below.” Wright v. Newman, 735 F.2d 1073,

1076 (8th Cir. 1984); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It isthe

general rule, of course, that a federal appellate court does not consider an issue not

passed upon below.”); Seniority Research Grp. v. Chrysler Motor Corp., 976 F.2d

1185, 1187 (8th Cir. 1992) (“Normally, a party may not raise an issue for the first

time on appeal as a basis for reversal.”). The general rule against consideration of an

issue not passed upon below, however, is not absolute. As the Supreme Court has

stated: 

The matter of what questions may be taken up and resolved for

the first time on appeal is one left primarily to the discretion of the

courts of appeals, to be exercised on the facts of individual cases. . . . 

Certainly there are circumstances in which a federal appellate court is

justified in resolving an issue not passed on below, as where the proper

resolution is beyond any doubt orwhere injustice might otherwise result.

Singleton, 428 U.S. at 121 (internal quotation marks and citations omitted); see also

Seniority Research Grp., 976 F.2d at 1187 (“There are exceptions, as where the

obvious result of following the rule would be a plain miscarriage of justice or would

be inconsistent with substantial justice.”). Ames does not argue that this is a case

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where either “the proper resolution is beyond any doubt” or “where injustice might

otherwise result.” Singleton, 428 U.S. at 121. We thus decline to consider Ames’s

argument that she was actually discharged.

Ames relies on our decision in Schneider v. Jax Shack, Inc., 794 F.2d 383 (8th

Cir. 1986), to argue that she did not waive her actual discharge argument. She

contends that, under Schneider, “the district court should have focused first on the

antecedent question of whether there had been an actual discharge[,]” id. at 384,

before it decided whether she was constructively discharged, because her complaint

and brief in opposition to Nationwide’s summary judgment motion set forth facts

suggesting that an actual discharge had occurred. Schneider, however, is

procedurally distinguishable. In Schneider, the parties did not submit briefing in

support of their respective positions to the district court. Id.; see also Schneider v.

Jax Shack, Inc., No. CV84-L-303, 1985 WL 570618, at *1 (D. Neb. May 10, 1985). 

The district court was asked to render a decision on the merits without trial based on

stipulated evidence. Schneider, 1985 WL 570618, at *1. On appeal, we held that the

district court should have addressed whether there had been actual discharge because

its findings of fact suggested that an actual discharge had occurred. Schneider, 794

F.2d at 384.

A motion for summary judgment presents different opportunities and imposes

different responsibilities on the parties. See Rodgers v. City of Des Moines, 435 F.3d

904, 908 (8th Cir. 2006) (“Without some guidance, we will not mine a summary

judgment record searching for nuggets of factual disputes to gild a party’s

arguments.”); see also Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d

731, 735 (8th Cir. 2009) (holding that the “failure to oppose a basis for summary

judgment constitutes waiver of that argument” on appeal). Thus, unlike the plaintiff

in Schneider, who did not submit briefing in support of her arguments, Ames had the

opportunity to oppose Nationwide’s motion and was responsible for presenting any

argument that might have precluded summary judgment in favor of Nationwide. See

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Satcher, 558 F.3d at 735 (“It was [the plaintiff’s] responsibility to show that there

were genuine issues of material fact in the record that precluded the summary

judgment Appellees sought below.”); see also Grenier v. Cyanamid Plastics, Inc., 70

F.3d 667, 678 (1st Cir. 1995) (“If a party fails to assert a legal reason why summary

judgment should not be granted, that ground is waived and cannot be considered or

raised on appeal.” (quoting Vaughner v. Pulito, 804 F.2d 873, 877 n.2 (5th Cir.

1986))); Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983) (“It is a

well-settled rule that a party opposing a summary judgment motion must inform the

trial judge of the reasons, legal or factual, why summary judgment should not be

entered. If it does not do so, and loses the motion, it cannot raise such reasons on

appeal.”); Frank C. Bailey Enters., Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.

1978) (per curiam) (“[A]n appellate court, in reviewing a summary judgment order,

can only consider those matters presented to the district court.”). Because Ames

failed to present her actual discharge argument to the district court in opposition to

Nationwide’s summary judgment motion, we conclude that she has waived that

argument on appeal.

III.

The judgment is affirmed.

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