David A. Johnson v. University of Iowa , 431 F.3d 325 ( 2005 )


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  •                      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
    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
    1
    The Honorable Ronald E. Longstaff, United States District Judge for the
    Southern District of Iowa.
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    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 right-
    to-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
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    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
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    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
    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
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    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
    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.
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    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.
    4
    This also bolsters the University’s argument that it operates under the
    assumption that women generally need six weeks to recover from childbirth.
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    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.
    -8-
    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
    -9-
    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.
    5
    The 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-
    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.
    ______________________________
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