                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2709
                                   ___________

Anna M. Roach,                         *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
Vallen Safety Supply, Co.; Vallen      *
Corporation,                           * [UNPUBLISHED]
                                       *
             Appellees.                *
                                  ___________

                          Submitted: April 6, 2001
                              Filed: April 11, 2001
                                  ___________

Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

       Anna Roach brought this gender discrimination action against her former
employers, Vallen Safety Supply Company and Vallen Corporation (collectively,
Vallen) after Vallen failed to promote her and eventually terminated her. The district
court1 granted summary judgment to Vallen, and she appeals. Having reviewed de
novo the record and considered the parties’ briefs, see Hardin v. Hussman Corp., 45
F.3d 262, 264 (8th Cir. 1995) (standard of review), we affirm.

      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
       We agree with the district court that Roach’s Missouri Human Rights Act
(MHRA) failure-to-promote claim was time-barred, notwithstanding Roach’s
continuing-violation-doctrine argument, as the promotion decision was a discrete act
occurring more than 180 days prior to her MHRA complaint. See Mo. Rev. Stat.
§ 213.075.1 (2000); High v. Univ. of Minn., 236 F.3d 909, 909 (8th Cir. 2000) (per
curiam) (this court has never applied continuing-violation-doctrine to discrete act such
as failure to promote). The Title VII failure-to-promote claim also fails for lack of
evidence that Roach was similarly qualified to the male who was given the advertised
position. See McCullough v. Real Foods, Inc., 140 F. 3d 1123, 1126 (8th Cir. 1998)
(fourth element of prima facie failure-to-promote claim is that employer promoted
similarly qualified person who was not member of protected group).

      To avoid summary judgment on her discriminatory-termination claim, Roach had
to show she was qualified for her job; she was discharged; and she was replaced by a
male, the job remained open while Vallen sought a replacement, or circumstances
surrounding her termination otherwise created an inference of discrimination. See
Johnson v. Baptist Med. Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996). Roach did not
satisfy the final element, as she was replaced by a female, and the circumstances
surrounding her dismissal--her counseling and subsequent refusal to supply a requested
doctor’s slip for sick days, culminating in her telling her supervisor to “kiss my ass”--
did not raise an inference of discrimination. Although Roach presented evidence that
a male employee also made a similar comment to Roach’s supervisor without
consequences, we agree with the district court that Roach and the male employee were
not similarly situated: when the male employee allegedly made the statement he had
not just been counseled, he had not consistently refused to submit a requested doctor’s
excuse, and he held a different position in a different department with a different
supervisor. See LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 694 (8th Cir.
2001) (employees who worked in entirely different departments and had different
positions were not similarly situated in all relevant respects); Palesch v. Mo. Comm’n
on Human Rights, 233 F.3d 560, 568 (8th Cir. 2000) (test for whether employees are

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similarly situated to justify comparison is rigorous; employees are similarly situated if
they are involved in or accused of same conduct but are disciplined differently).

       Finally, we conclude Roach’s general disparate-treatment claim fails as well
given the lack of evidence that similarly situated males were treated more favorably;
and we decline to consider her newly raised retaliation claim. See Berg v. Norand
Corp., 169 F.3d 1140, 1145 (8th Cir.), cert. denied, 528 U.S. 872 (1999).

      Accordingly, we affirm.

      A true copy.

             Attest:

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




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